Director of Public Prosecutions v Akoi

[2023] ACTSC 388

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

DPP v Akoi

Citation: 

[2023] ACTSC 388

Hearing Date: 

13 December 2023

Decision Date: 

13 December 2023

Before:

Mossop J

Decision: 

See [53].

Catchwords: 

CRIMINAL LAW – JUDGMENT AND PUNISHMENT – Sentence – offender pleaded guilty to charges of unlawful act causing grievous bodily harm and choke, suffocate or strangle – offender bit off the tip of the victim’s left little finger – offences occurred when offender highly intoxicated – grievous bodily harm offence in the mid-range of objective seriousness – choke offence in the low-range of objective seriousness – sentence of imprisonment imposed for grievous bodily harm charge suspended on entry of good behaviour order – good behaviour order imposed for choking charge

Legislation Cited: 

Crimes (Sentencing) Act 2005 (ACT), s 53(1)(b)

Crimes Act 1900 (ACT), ss 25, 28(2)

Crimes (Sentence Administration) Act 2005 (ACT)

Cases Cited: 

R v Alaragi [2020] ACTSC 77

R v Stefanac [2017] ACTSC 415

R v Todkill [2018] ACTSC 182

Parties: 

Director of Public Prosecutions

Yaak Akoi ( Offender)

Representation: 

Counsel

L Etheredge ( DPP)

A Doig ( Offender)

Solicitors

ACT Director of Public Prosecutions

Darryl Perkins Solicitors ( Offender)

File Number:

SCC 203 of 2022

MOSSOP J:  

Introduction

1․On 27 July 2023, Yaak Akoi pleaded guilty to the following charges:

(a)Count 1: Unlawful act causing grievous bodily harm, contrary to s 25 of the Crimes Act 1900 (ACT) (SCCAN 143/2023); and

(b)Count 2: Choke, suffocate or strangle another person, contrary to s 28(2)(a) of the Crimes Act 1900 (ACT) (SCCAN 179/2022).

2․The maximum penalty for both offences is 5 years’ imprisonment.

Facts

3․In April 2022, the victim was residing at an address in Watson, Australian Capital Territory (ACT). The unit was the home of his uncle. The offender and the victim are extended cousins, because their mothers are from the same tribe. The offender would often visit the victim’s residence because he was a friend of the victim’s uncle.

4․On 2 April 2022, the victim and the offender were both at the residence of the victim’s uncle. Several people were gathered there, drinking alcohol.

5․In the early evening, the guests were drinking spirits. The offender was sitting next to the victim on the couch. The other occupants were scattered around the living room, talking. The offender and the victim were talking. An argument between them broke out. The offender told the victim that he was a “witch”. The victim responded, “if I’m a witch, you’re more of a witch.” They both raised their voices during the argument and the offender’s body language was aggressive.

6․The victim attempted to get out of the argument because the offender was drunk. When the victim turned away to speak to someone else, the offender turned and pushed himself onto the victim. The victim tried to push the offender off him. In this physical altercation, the offender placed his open left hand around the front of the victim’s neck and applied pressure. This is count 2 on the indictment. The offender then moved his right hand towards the victim’s head and neck area.

7․The victim used his left hand in an attempt to push the offender’s right hand away from him, at which time the offender grabbed the victim’s left hand and bit the victim’s left little finger, severing the tip. This is count 1 on the indictment. One of the other guests intervened to pull the offender off the victim. It took that guest two attempts to separate the two. The offender then spat the tip of the victim’s finger out of his mouth.

8․The offender attempted to leave the unit. However, those present told the offender to stay and wait for the police. One of the other guests observed blood dripping from the victim’s finger, and applied pressure to stop the bleeding. She wrapped the bitten-off part of the finger up in tissues. Police were called and were told that there had been a fight and that someone’s finger had been bitten off. The offender was identified as the person who had bitten the finger. The offender said that it was “an accident”.

9․When police arrived, they took steps to identify where the finger was located and how much blood the victim had lost. During this, the offender knelt down in front of the police and said “sorry” and words to the effect of “I plead guilty”.

10․Police separated the victim and the offender and took the victim outside into the backyard. The victim told police that they had an argument about “nothing”, shortly before they had been called. The victim said, “he jumped on me” but could not provide any further details. He said he would provide a statement to police the next day, after he had been to hospital. He confirmed that he had been drinking since about 11:00am or 12:00pm and had invited the offender to come to the unit.

11․While the victim was in the backyard, the offender was taken out of the unit and into the building stairwell. He was given a caution. Police observed him to be heavily intoxicated, being slow in speech, struggling to stand and smelling of liquor. The offender began to cry, knelt down on one knee and repeated “I’m sorry, he’s my cousin”.

12․The offender told police that the victim slapped him, and that as the victim slapped him, the victim’s finger got caught in the offender’s mouth and as a result, the tip of the victim’s finger was bitten off. He said he did not mean to do it.

13․Shortly after 7:00pm, the offender was arrested and cautioned again. Following this, he stated that the victim had broken a window and that this was what they were arguing about.

14․The severed part of the victim’s finger was put on ice and transported to hospital by the ACT Ambulance Service. The victim was admitted to hospital on 2 April 2022 and on the next day he underwent emergency surgery under local anaesthetic to reattach the amputated part of the finger.

15․The victim underwent a composite graft of the distal tip of the left little finger and nailbed repair under local anaesthesia. The operation occurred on 3 April 2022 using a ring block, that is, a form of regional anaesthesia where the finger is numbed whilst the patient remains conscious. The finger wound and amputated portion were debrided, that is, dead and compromised tissue was removed, and the finger wound cleaned with antiseptic solution. The nail was then removed prior to graft fixation and subsequently reattached. The left little finger was dressed and splinted. The victim received intravenous antibiotics, dressing of the wound and an arm sling.

16․The victim was discharged on 3 April 2022 and was advised to continue oral antibiotics for five days, to keep the dressing intact and to attend an outpatient plastic clinic review on 8 April 2022.

17․On 5 July 2022, the victim was admitted for day surgery under the plastic surgery team due to infection of the composite graft of the left little finger and suspected osteomyelitis, that is, bone infection. The victim underwent terminalisation of the left little finger, that is, surgical removal of the affected tissue under local anaesthetic, on 6 July 2022. Infection of the finger graft was confirmed, and antibiotics were administered for five days. However, the victim was not treated for osteomyelitis of the left little finger.

18․The victim was reviewed by the plastic surgery team in the outpatient department in July and August 2022, and he was then discharged to the care of his general practitioner. The victim suffers from permanent deformity, truncation and scarring of the left little finger.

Victim impact

19․No victim impact statement was provided. The court must not draw any inference about the harm suffered by the victim from the fact that a victim impact statement is not given to the court in relation to an offence: Crimes (Sentencing) Act2005 (ACT) s 53(1)(b). In the present case, consistent with the agreed facts, it is clear that the victim of the offending suffered not only the immediate trauma associated with the severance of his finger, but also a repeated need for medical treatment as well as permanent disfigurement of his finger. There are likely to be some psychological consequences although it is not possible to determine their extent.

Objective seriousness

20․The objective seriousness of the unlawful act causing grievous bodily harm is to be assessed having regard to the offender’s conduct and the nature of the grievous bodily harm sustained. In this case, the offence occurred while the victim was trying to fend off an unprovoked attack by the offender. The attack was not premeditated and resulted from intoxication by alcohol. The harm sustained was the permanent severance of the tip of the victim’s little finger. That required surgery and subsequent treatment. The victim was very fortunate to have the benefit of modern medical care which could reattach the severed portion of his finger. While the injury to the victim clearly amounted to grievous bodily harm, the nature of the harm is less serious than other injuries that fall within the scope of “grievous bodily harm”. Overall, the unlawful act causing grievous bodily harm is in the mid-range of objective seriousness for this offence.

21․The offence of intentionally and unlawfully choking, suffocating or strangling a person falls within the range of different offences dealt with by s 28(2) of the Crimes Act. Having regard to the fact that the agreed facts do not indicate that there was any interference with breathing, threats made at the time of the offence or injuries sustained from the act and that no aids were used, this offending is at the low end of objective seriousness for this offence.

22․Insofar as the prosecution submissions referred to the offending as family violence offending and contended that this was an aggravating factor, I do not accept that submission. The offender and the victim were related because they were “extended cousins” because their mothers were from the same tribe in what is now South Sudan. That relationship does not give rise to any of the features which would make the family relationship an aggravating feature. I do, however, accept that it is an aggravating feature of both offences that they occurred in the victim’s home.

Subjective circumstances

23․The offender’s personal circumstances are disclosed in a pre-sentence report dated 4 December 2023. The offender was born in what is now South Sudan. He is recorded as being 37 years old but as there is no record of his birth or way of knowing his real age, he cannot be sure. He grew up during the Sudanese civil war, during which he witnessed conflict and violence.

24․He was not subject to domestic violence, neglect or alcohol or drug abuse in the family home. He described substantial instability during his youth. His father, who was a civilian, was murdered during and as a result of the conflict.

25․In 1992, his uncle fled with him to a refugee camp in Kenya, and as a result he lost all contact with his mother. He attempted to re-enter South Sudan in 1997 to find his mother. During this attempt he was shot and, as a result, gave up on his search. He reported to the author of the pre-sentence report that he had been shot approximately four times due to the ongoing conflict in the region, resulting in scarring across his body and arthritis in his hip.

26․He came to Australia in 2005 on a refugee visa. He subsequently obtained citizenship. When coming to Australia as a refugee, he said that his family was deceased, as he believed that they had been murdered in South Sudan. Subsequently, he was able to return to Kenya in 2007 and was informed that his mother was alive and that he had three younger siblings now aged approximately 20, 26 and 29. He has since developed a close relationship with his mother and siblings. They live in a refugee settlement in Kenya. He considers himself responsible for supporting his mother and siblings financially and sends a substantial portion of his income to support them in Kenya.

27․He visits them as often as he can and speaks to them online regularly. His family is mostly unable to work as they reside in a refugee settlement in Kenya.

28․[Redacted].

29․He disclosed two previous relationships, both arranged in Africa, one of which resulted in a five-year marriage from 2013 to 2018. He explained that he had been unable to arrange for his wife to move to Australia, resulting in the relationship ending.

30․He has stable rental accommodation. He keeps to himself and has little contact with his neighbours.

31․Because of the circumstances where he grew up, he has no education beyond Year 7. In Australia, he completed an English course through the Canberra Institute of Technology in 2011. He has had consistent employment in order to support his family in Kenya. Although there have been some periods of unemployment, he has either been working or looking for work. Sometimes his work has been impacted as a result of pain from arthritis in his hip.

32․He has worked in the railway and construction industries and as a cleaner. More recently, he has been employed for approximately two years precasting and patching concrete slabs. He has worked for the same company since November 2021. A reference from his employer in May 2022 is very positive about his conduct within the workplace. He travels for work and was able to nominate multiple upcoming contracts across New South Wales which were booked for 2024. He recognised that if he was given a community‑based order, his ability to travel unrestricted would be affected.

33․He [redacted] sends approximately $250 a week to his family in Kenya to support their education, food and accommodation. He has a liability to a bank of approximately $15,000. He struggles substantially with the financial burdens of managing these different commitments.

34․He denied having any antisocial friends or associates, describing a prosocial network of companions he had met through work, South Sudanese community events and church.

35․He does not have any problems with illicit substance use. However, he does have a problem with alcohol, consuming up to 15 standard drinks a week. He drinks to intoxication on his days off work. Obviously enough, intoxication was a principal issue in the current offending. He also has three convictions for drink-driving arising from two incidents in 2014 and one in 2016. He completed the Karralika Sober Driving Program in 2017. Although the offender did not think he would benefit from any interventions relating to alcohol use, other information available to the authors of the pre‑sentence report, which was likely to be reliable, indicated that he might.

36․He reported attending church weekly and regularly engaging in South Sudanese social and cultural events. He describes these communities as being prosocial.

37․He has no significant problems with mental health. Although he described his childhood as traumatic and acknowledges experiencing grief regarding the state of his country, he does not feel that this impacts his daily life to a great extent.

38․His current attitude to the offences appears to be less demonstrative of remorse than demonstrated by his conduct at the time, although some of the conclusions about his attitude reached by the authors of the pre-sentence report may have been affected by the fact that he was interviewed based upon the prosecution case statement as distinct from the Statement of Facts ultimately agreed upon for the purposes of sentencing.

39․The author of the pre-sentence report recorded that he denied having touched the victim’s neck and rejected the conviction for the choking offence. He minimised the offence, saying that it occurred by accident and denied any intention to hurt the victim. He acknowledges having been involved in a physical altercation, but positioned himself as the victim on the basis that he had been slapped and choked. He claimed his actions to be in self-defence and also asserted that he was less intoxicated than the victim. He was relieved to hear that the injury was less significant than first believed. Counsel for the offender made it clear that there was no attempt to traverse the pleas of guilty.

40․If a good behaviour order was made, he was assessed as suitable for a low level of intervention by ACT Corrective Services. He was assessed as suitable for a community service work condition and suitable for an Intensive Correction Order (ICO).

Criminal history

41․In 2015, the offender was convicted of two counts of drink-driving, occurring on different days in 2014, and one count of furious driving. He was sentenced to a good behaviour order for 12 months.

42․In 2017, he was again convicted of drink-driving on a date in 2016 and sentenced to an 18-month good behaviour order.

43․In 2017, he was convicted for driving while using a handheld mobile phone. He was convicted and fined $400.

44․He complied with the requirements of the good behaviour orders imposed upon him and at that time was assessed by ACT Corrective Services as being at a low risk of general reoffending.

Plea of guilty

45․The offender pleaded guilty four days prior to the commencement of the hearing. Notwithstanding the lateness of the plea, it still had considerable utilitarian value. There will be a reduction of 10 percent on the sentences that would otherwise have been imposed.

Time in custody

46․The offender spent three days in custody. This time will be taken into account in determining the appropriate sentence.

Consideration

47․The offending that involved biting off the victim’s finger warrants a custodial sentence. The real issue is whether that sentence should require a period of full-time custody.

48․The offender has a strong subjective case arising from his background and his successful and generally lawful life in Australia. His convictions for drink-driving are consistent with there being an underlying problem with the usage of alcohol. However, that is a minor blemish on his otherwise successful life in Australia notwithstanding a very difficult upbringing.

49․The comparable authorities referred to by the prosecution involve some quite lenient sentences for causing grievous bodily harm. The decisions in R v Stefanac [2017] ACTSC 415 and R v Todkill [2018] ACTSC 182 both involved the much more serious offence of recklessly inflicting grievous bodily harm, which carries a maximum penalty of 13 years’ imprisonment. The decision in R v Alaragi [2020] ACTSC 77 involved the offender biting off part of an ear which was a breach of s 25 of the Crimes Act and resulted in a wholly suspended sentence with a starting point of 10 months.

50․In my view, in the present case the appropriate starting point is a sentence of imprisonment of 10 months reduced to nine months on account of the plea of guilty. However, having regard to his subjective circumstances, it is a sentence which can be served without a further period of full-time detention. I consider that it is best to deal with the three days of pre-sentence custody by taking them into account but not incorporating them into the sentence by backdating. I do not consider that an ICO would be necessary in the present case. Rather, I consider that the sentence can be appropriately served by way of a suspended sentence with a relatively short period of community service work. In my view, the community service work is necessary in order to ensure that the sentence appropriately punishes the offender and recognises the harm done to the victim of the offending. There will be a probation condition which will provide a basis for any further counselling or treatment in relation to alcohol abuse that the Director-General considers to be appropriate.

51․Both the requirement for supervision under the good behaviour order and the requirement to perform community service are not so onerous as to interfere with the offender’s capacity to maintain full employment in his current job. The maintenance of such employment is a matter of significance both for the offender and those that depend upon him.

52․Given the low objective seriousness of the offending, the choke, suffocate or strangle charge may be appropriately dealt with by a good behaviour order.

Orders

53․The orders of the Court are as follows:

1.On the charge of causing grievous bodily harm by an unlawful act (SCCAN 143/2023) the offender is convicted and sentenced to imprisonment for nine months which sentence is wholly suspended forthwith upon entry into an undertaking to comply with the offender’s good behaviour obligations under the Crimes (Sentence Administration) Act 2005 for a period of 18 months with the following additional conditions:

(a)the offender be on probation subject to the supervision of the Director-General and obey all reasonable directions of that person;

(b)the offender perform 70 hours of community service within 18 months.

2.On the charge of choking, suffocating or strangling another person (SCCAN 179/2022) the offender is convicted and required to enter into an undertaking to comply with his good behaviour obligations under the Crimes (Sentence Administration) Act 2005 for a period of six months.

I certify that the preceding fifty-three [53] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop

Associate:

Date: 9 January 2024