DPP v Mwamba & Ors [2015] VCC 1388

3 In the case of Tshiswaka Mwamba, the jury was also unable to reach a verdict in relation to two charges of Threat to Kill and the Director of Public Prosecutions subsequently filed a Notice of Discontinuance of these charges on 7 August 2015.

4 In the cases of Mbuyi Mwamba and Mualaba Madjaga, the jury was unable to reach a verdict in relation to one charge of Threat to Kill and the Director of Public Prosecutions filed a Notice of Discontinuance in relation to this charge on 7 August 2015.

5 The facts giving rise to the findings of guilt by the jury may be summarised as follows -

6 You were all born in the Democratic Republic of Congo ("the DRC"). By reason of the persecution of you by the government and security forces of that country, you all sought refuge in Brazzaville and Pointe Noire in the neighbouring Republic of Congo. In the Republic of Congo, you were supported by the UNHCR before being resettled in Australia as refugees. I will deal with your respective personal circumstances in regard to this later in these reasons.

7 The evidence led in the trial established that an organisation known as the Combatants operates internationally to oppose the government of the DRC. Its objectives are to advocate for human rights and the rule of law in the DRC. Members of the Combatants wear military uniform when engaged in the activities of the organisation. The evidence disclosed that at the time of the offending before the Court, there was an active wing of the Combatants operating in the Congolese community in Melbourne. Pierre Mwamba was the leader of this wing and his brothers, Tshiswaka Mwamba and Mbuyi Mwamba, were active participants in the organisation. The accused Madjaga is a cousin of the Mwambas and prior to the events giving rise to the offending before the Court, he was resident in Canberra and not as directly involved in the activities of the Combatants in Melbourne, although he was a member and shared the objectives of the organisation.

8 In March 2013, a group of Congolese musicians including JB Mpiana were to perform a series of concerts in Australia. The Combatants believed he performed music that praised the government of the DRC and were opposed to him coming to Australia. At an International Women's Day conference on 8 March 2013 in Adelaide, Alain Lombo, a witness in the trial, recorded a video that was posted on You Tube critical of the position taken by the Combatants in relation to JB Mpiana. This angered the accused Pierre Mwamba who telephoned Lombo and threatened him. The accused Tshiswaka Mwamba and Mbuyi Mwamba also participated in threatening phone calls made to Lombo. Lombo was resident in Perth at this time, but told the callers during the conversations that they could meet with him in Melbourne.

9 The accused were not aware of Lombo's precise address in Melbourne and on the night of 27 April 2013, attended at a block of units in Gertrude Street, St Albans looking for him. The accused Madjaga had arrived in Melbourne approximately three days prior to this. Lombo's wife, Adele Atatu, was at home with her two children and Lombo was still in Perth. The accused looked around the units but were unable to find Lombo's precise address.

10 I am satisfied that in all probability the accused Pierre Mwamba then decided to obtain from an associate of Lombo, Sidney Langa, Lombo's precise address, as he and his co-accused had not been able to locate him on the evening of 27 April 2013.

11 At approximately lunchtime on 28 April 2013, the accused Mbuyi Mwamba telephoned Langa and asked him where he was. Langa was at his wife's house in Caroline Springs as they were then living separately from one another. After the phone call, Langa told his wife, their children and Sarah Efolko, who was staying at the house, to quickly leave. Shortly after driving away in Langa's vehicle, they were intercepted on the roadway by the four accused and another member of the Combatants, a person called Fifa, who were all in Pierre Mwamba's vehicle. The vehicle was parked in a way that prevented Langa from driving away.

12 The accused who were all dressed in military clothing alighted from the vehicle. Mbuyi Mwamba demanded that Langa provide Lombo's address. Langa and his family were frightened and intimated by the actions of the accused and Langa agreed to show them where Lombo lived. Tshiswaka Mwamba travelled in Langa's vehicle which was followed by the other accused in Pierre Mwamba's vehicle. It took approximately 15 minutes to travel to Lombo's premises in St Albans and it is this conduct of forcing the occupants of Langa's vehicle to travel to Lombo's premises that constitutes the five charges of Kidnapping.

13 In my opinion, the jury also accepted that it was a reasonable possibility that Sarah Efolko had agreed to meet Mbuyi Mwamba for lunch and thereby was not carried away against her will and for this reason all accused were found not guilty of the charge of Kidnapping concerning her.

14 After the accused were shown Lombo's unit, Langa and his family immediately drove away. Shortly after this, the four accused and Fifa entered Lombo's unit. His wife, Adele Atatu, was breastfeeding her baby son in her bedroom and her young daughter was playing outside the unit. Her brother-in-law was also in his bedroom listening to loud music. Her husband had not returned from Perth. I am satisfied that the accused Pierre Mwamba and Tshiswaka Mwamba were both armed; one with a machete and the other with a baseball bat. Pierre Mwamba demanded to know where Lombo was and Atatu was pulled out of her bed by her underwear. Atatu was told to tell her husband to "back off" and she was manhandled and threatened. Thereafter the accused left the premises and Atatu reported the incident to the police.

15 In my opinion, the conduct of the accused was calculated to intimate Lombo and his family in response to his criticism of the actions of the Combatants attempting to prevent JB Mpiana performing in Australia. The criminal conduct of the accused was intended to silence those who actively opposed their political activities in Australia. As I observed during the plea hearings, it is particularly ironic that persons who escaped persecution at the hands of their government resorted to violence of this nature to further their own political cause. With the exception of Sidney Langa, the victims of this offending were women and young children. The offending was cowardly and in my opinion without any justification.

16 Politically motivated violence has no place in a pluralist and democratic society and it must be denounced by this Court. Furthermore, the Court must protect the law-abiding members of the Congolese community from offending of this nature and the sentences I impose must be calculated to deter the accused and other persons from acting in this manner.

17 I have received in evidence a Victim Impact Statement of Adele Atatu and I accept that the offending has had a traumatic effect upon her and her sense of safety and security in Australia has been seriously compromised by what took place.

19 Pierre Mwamba, you were born in the DRC on 14 March 1978 and you are now aged thirty-seven. You have admitted a prior criminal history for offences of Exceeding the prescribed alcohol limit when driving, Theft, Obtaining property by deception and Recklessly Causing Injury for which you were fined $1,000 without conviction in 2011.

20 You completed your secondary schooling in Kinshasa in the DRC and commenced studying medicine at university. You father was elected to parliament in 1994 and following this you both joined a political movement called the Union for Democratic Social Progress ("the UDSP"). In 1997 the UDSP was banned in the DRC and as a result of your father publishing articles critical of the government, he was imprisoned. Thereafter you and your family were subjected to serious persecution by the government and as a result of this in 2000 you and your family fled to the Republic of Congo. You resided in Brazzaville in the Republic of Congo between 2000 and 2006, during which time you studied computer science. In 2006 you and your father were resettled as refugees in Australia by the UNHCR.

21 I accept that you suffered significant persecution at the hands of the government of the DRC and prior to your arrival in Australia, you took up the cause of human rights advocacy on behalf of other persons persecuted by that government. You have continued to pursue this cause and I accept that you have provided considerable support to other members of your community. I have received in evidence 12 character references attesting to your participation in the Congolese community. The references all speak very highly of you.

22 However, the President of the Democratic Republic of Congo Community Association of Victoria, Mr N Tshibala, also stated that the leadership team of the Congolese community concluded that this matter would have been best resolved at community level. A number of the other references questioned the verdicts returned by the jury.

23 I have also received in evidence a number of certificates attesting to your human rights advocacy and also your academic transcript from Victoria University.

24 It is clear from the evidence that you gave in the trial and the contents of the references tendered on your behalf that you occupy a leadership position in the Combatant movement in Australia and in my opinion the offending before the Court occurred at your direction. You chose to dress in military style clothing during this trial and you have used the trial process to further your cause. You have shown no remorse for your offending and contend that the case against you is a fabrication. You are an intelligent and educated man and you decided to use violence and intimidation to advance your political objectives.

25 In my opinion, your moral culpability for your offending is high. But I also accept that the persecution you suffered in the DRC in part explains why you acted in this manner.

26 You are married and have four children. You have worked in a range of occupations and also have volunteered for the Catholic Church. In 2010 you were injured in a car accident and you suffer from ongoing hip pain. You are now an Australian citizen.

27 I accept that you prospects of rehabilitation are reasonable, although this will be dependent on you accepting that your political objectives may only be pursued peacefully and lawfully.

28 Your case and the cases of your co-accused involve a complex balance of a number of prominent sentencing considerations and I have concluded that the balance will be best achieved in each case by the imposition of a term of imprisonment and a Community Correction Order to be commenced on the completion of the term of imprisonment.

29 The term of imprisonment in your case and the term and conditions of the Community Correction Order will be greater than that imposed on your co-accused because, in my opinion, the offending was instigated by you and the purposes for which the sentence is to be imposed in your case must reflect that fact. You also have a prior court appearance for an offence of violence.

30 Tshiswaka Mwamba, you were born on 31 March 1984 in the DRC and are now aged thirty-one. You have admitted a criminal history arising from six court appearances. You have four convictions for Exceeding the prescribed concentration of alcohol while driving and a number of other traffic convictions including driving whilst disqualified.

31 Of significance in your case, is that at the time of your offending you had just completed a Community Correction Order of 12 months duration for offences of Unlawful Assault, Criminal Damage, contravening a Family Violence Intervention Order and Theft by deception. The Community Correction Order was conditional upon you receiving treatment for mental illness and undertaking a men's behaviour change program. The court that imposed the Community Correction Order was informed in a psychological report that you suffered from schizophrenia.

32 You also fled the DRC with your family in 2000 when you were sixteen. I accept that your childhood and early teenage years were severely disrupted by reason of the persecution suffered by your family in the DRC. You also resided in the Republic of Congo until 2007 when you were also resettled in Australia as a refugee by the UNHCR. You have not obtained Australian citizenship and if sentenced to 12 months' imprisonment or more in relation to this matter or in combination with your prior criminal history, your visa will be cancelled. Your visa may also be cancelled if you fail the character test provided for in the Migration Act 1948 (Cth).

33 Since arriving in Australia, you have studied English and have been employed in a range of semi-skilled occupations. You have three children from two relationships. The youngest of your children was born when you were in custody following this trial.

34 I have received in evidence a psychological repot of Mr Guy Coffey, a consulting and forensic psychologist, detailing your developmental history and psychological profile. It states that in November 2009, you were admitted to the Werribee Mercy Psychiatric Unit suffering from psychosis. Since that time you have experienced mood disturbance and depression. You have also been treated for alcohol abuse. Mr Coffey concludes that you do not suffer from a diagnosable mental disorder such as schizophrenia but you do suffer from a range of psychological vulnerabilities. This must also be considered in the context of the serious persecution you and your family experienced in the DRC.

35 I accept that the principles set out by the Court of Appeal in the R v Verdins [2007] VSCA 102; (2007) 16 VR 269 are engaged in your case, such that imprisonment may compound your psychological vulnerabilities and it will also involve a greater degree of hardship for you than would otherwise be the case.

36 However, you played a prominent role in the offending and were, in effect, your brother Pierre's lieutenant. In my opinion, your moral culpability should not be moderated by reason of your psychological history and the principles of general deterrence and specific deterrence should also not be moderated in your case.

37 I accept that your partner is currently suffering post-natal depression and that your imprisonment is causing hardship for her.

38 You have also shown no remorse for your offending and no insight into the criminality of pursuing your political objectives by violent means.

39 In my opinion, any assessment of your prospects for rehabilitation must be approached with caution and you require ongoing treatment and counselling and supervision in the community.

40 I have also concluded in your case that the purposes for which this sentence is to be imposed will be best achieved by you serving a term of imprisonment and on completion of it undertaking a Community Correction Order.

41 Mbuyi Mwamba, you were born on 31 March 1984 in the DRC and are now aged thirty-one. You are Tshiswaka Mwamba's twin brother. You have admitted a criminal history from three court appearances, two of which were for Exceeding the prescribed concentration of alcohol while driving.

42 On 17 June 2010 in the Dandenong Magistrates' Court, you were placed on an adjourned undertaking for 12 months in relation to one charge of Indecent Assault. This charge arose out of conduct that occurred after you went to a woman's home with her after you had each been drinking alcohol. The Magistrate imposed a condition of the bond that you entered that you undertake a gender awareness program.

43 You too suffered persecution in the DRC and fled to the Republic of Congo in 2000. Prior to fleeing the DRC, one of your brothers, Kunesu Mwamba, disappeared after visiting your father in prison. He was eighteen years old. After arriving in the Republic of Congo, you studied law for two years.

44 You came to Australia in 2007 with your brother and other family members as a refugee supported by the UNHCR. After arriving here, you have worked in a variety of occupations. Most recently you were employed as a team manager in a landscaping company called Equal Design Landscaping in Preston. You married in 2010 and have two children aged five and one. You are an Australian citizen.

45 You are active in the Congolese community in Melbourne and it would appear also active in the Combatants. The evidence led at the trial disclosed that you played a lesser role in the offending than your brothers but it is nevertheless clear that you were also willing to offend in order to pursue the political objectives of the movement that you were a member of.

46 I accept that the trauma that you suffered as a result of persecution in the DRC is ongoing and you require support and counselling in the community.

47 You have not demonstrated any remorse for your offending and in my opinion your prospects for rehabilitation, whilst reasonable, are also dependent upon you accepting that your political objectives may only be pursued in a lawful and peaceful manner.

48 In my opinion, the purposes for which this sentence is to be imposed will also be best achieved by you serving a term of imprisonment and on completion of it undertaking a Community Correction Order.

49 Mualaba Madjaga, you were born in the DRC on 4 April 1991 and are now aged twenty-four. You have no prior convictions or outstanding charges and are accordingly a youthful first offender. I also accept that you are a person of good character.

50 You are the oldest of seven children. Your family suffered persecution at the hands of the government of the DRC and your father, Vincent Madjaga, was executed by the military in that country when you were eleven years old.

51 Your family also fled to the Republic of Congo from the DRC and then travelled to Australia as refugees supported by the UNHCR. You are permanent resident of Australia but not an Australian citizen and accordingly the character provisions of the Migration Act are also engaged in your case.

52 You have been educated in Australia to Year 11 level and since leaving school have worked in warehousing, meat processing and security. You are single and have no dependents.

53 I have received in evidence a psychological report of Mr David Ball, a consulting and forensic psychologist, setting out your psychological condition and developmental history. I accept that you suffer from chronic Post-Traumatic Stress Disorder stemming from the persecution you suffered and the events that you witnessed as a young man in the DRC. I also accept that imprisonment will compound your condition and the hardship you will experience will be greater by reason of it. I accept that the principles enunciated by the Court of Appeal in R v Verdins are also engaged in your case but I do not accept that your psychological condition should moderate your moral culpability or the application of the principles of general and specific deterrence in your case.

54 You are a cousin of the Mwamba family and also a member of the Combatants. You share the political objectives of your co-accused and although it is clear that you played a less prominent role in the offending than them, in my opinion, you too were prepared to offend in order to pursue your political objectives.

55 When interviewed by investigating police, you answered a number of questions put to you and I accept that you left the premises occupied by Ms Atatu when you understood that Mr Lombo was not present.

56 I accept that your prospects of rehabilitation are good but you too must accept that your political objectives may only be pursued by lawful and peaceful means.

57 On 30 June 2015, a riot occurred in the Metropolitan Remand Centre. All four accused were at that time on remand in that prison. None of the accused participated in the riots but all of you were transferred to Barwon Prison or Port Philip Prison and there held in maximum security 23 hour lockdown. I accept that this has resulted in additional hardship for each of you and in the cases of Tshiswaka Mwamba and Mualaba Madjaga, those prison conditions have further compounded your existing mental health conditions.

58 In the result, the sentence of the Court is as follows -

59 Pierre Mwamba, on the charge of Aggravated Burglary, you are convicted and sentenced to be imprisoned for twelve months. I declare that you have served 111 days by way of pre-sentence detention not including today.

60 On the five charges of Kidnapping, you are convicted and sentenced to complete a Community Correction Order for a period of two years on the core conditions provided for in the Sentencing Act 1991. I order that you complete the following special conditions:

(1) You undertake mental health assessment and treatment as directed;

(2) You be under the supervision of Corrections Victoria during the period of the order;

(3) You undertake programs to reduce the risk of reoffending;

61 Tshiswaka Mwamba, on the charge of Aggravated Burglary, you are convicted and sentenced to be imprisoned for eight months. I declare that you have served 111 days by way of pre-sentence detention not including today.

62 On the five charges of Kidnapping, you are convicted and sentenced to complete a Community Correction Order for a period of two years on the core conditions provided for in the Sentencing Act. I order that you complete the following special conditions:

(1) You undertake mental health assessment and treatment as directed;

(2) You be under the supervision of a Corrections officer during the period of the order.

(3) You undertake programs to reduce the risk of reoffending.

63 Mbuyi Mwamba, on the charge of Aggravated Burglary, you are convicted and sentenced to be imprisoned for six months. I declare that you have served 111 days by way of pre-sentence detention not including today.

64 On the five charges of Kidnapping, you are convicted and sentenced to complete a Community Correction Order for a period of 18 months on the core conditions provided for in the Sentencing Act. I order the following special conditions:

(1) You undertake mental health assessment and treatment as directed;

(2) You be under the supervision of a Corrections officer during the period of the order;

(3) You undertake programs to reduce the risk of reoffending;

65 Mualaba Madjaga, on the charge of Aggravated Burglary, you are convicted and sentenced to be imprisoned for four months. I declare that you have served 111 days by way of pre-sentence detention not including today.

66 On the five charges of Kidnapping, you are convicted and sentenced to complete a Community Correction Order for a period of 12 months on the core conditions provided for in the Sentencing Act. I order the following special conditions:

(1) You undertake mental health assessment and treatment as directed;

(2) You be under the supervision of a Corrections officer during the period of the order.

(3) You undertake programs to reduce the risk of reoffending.

(4) You perform 60 hours by way of unpaid community work.