Director of Public Prosecutions v Akok

[2021] VCC 722

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-21-00162
Indictment: L12320118

DIRECTOR OF PUBLIC PROSECUTIONS

v

NGOR AKOK

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JUDGE:	HIS HONOUR JUDGE HANNEBERY
WHERE HELD:	Melbourne
DATE OF HEARING:	1 June 2021
DATE OF SENTENCE:	4 June 2021
CASE MAY BE CITED AS:	DPP v Akok
MEDIUM NEUTRAL CITATION:	[2021] VCC 722

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:              Recklessly causing serious injury - very serious example of the offence – deportation – youthful offender – COVID-19

Legislation Cited:      Sentencing Act 1991 (Vic)

Sentence:                  Two years and six months and I order that you serve a period of one year and nine months before becoming eligible for parole.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms E. Maguire	Solicitor for the Director of Public Prosecutions
For the Accused	Ms K. Blair (for Plea) Ms G. Calgaro (for Sentence)	Gallant Law

HIS HONOUR:

Introduction

1Ngor Akok, you have pleaded guilty to one charge of recklessly causing serious injury, pursuant to s 17 of the Crimes Act 1958. The maximum penalty for this offence is 15 years imprisonment.

2You also pleaded guilty to a related summary offence, being commit an indictable offence whilst on bail, which has a maximum penalty of 30 penalty units or 3 months imprisonment.

Summary of Offending

3The offending was set out in the summary of prosecution opening, which was prosecution Exhibit 1 on the plea.  I do not intend to repeat that opening in full, but in somewhat abbreviated form, the circumstances are as follows:

4The charges before the court arise from an incident in which you, Mr Akok, attacked the victim in this matter, Sultan Mabior, seemingly without provocation or justification, resulting in head injuries to Mr Mabior.  At the time of the incident on 26 September 2020 you, Mr Akok, were 20 years old. The victim was 34 years old.

5The incident occurred in the afternoon of 26 September 2020. The victim in this matter was at a rotunda in Railway Reserve Footscray with one other person.  At 4.13 pm, you entered that rotunda with another person and yelled aggressively at the victim and his companion.  You pushed and pulled the victim and grabbed him by the arms.  He covered his face and tried to walk away, but you followed him.  At 4.17 pm, you struck the victim to the left side of his head, caused him to drop to the knees.  You punched him three times to the head.  It was these blows to the head that caused the serious injury.  You also made an attempt to kick the victim to the stomach, but it is unclear if that kick connected.

6You then grabbed the victim in a headlock.  Whilst holding him in this position, you kicked his legs out from underneath him, cause him to fall to the ground. You stood over the victim, holding him by his shirt.  The victim’s companion told you to stop.  You left the rotunda and walked towards Footscray train station.

7The victim was helped to his feet and was walked by his companion to Nicholson Street, Footscray. The victim was unsteady on his feet and there was blood coming from his nose or mouth.

8The victim was found at approximately 4.55 pm laying on the ground in a laneway with his eyes closed.  He was not moving or making any noises.

9Paramedics attended the scene. The victim was taken to Western General Hospital in Footscray.  It was confirmed that he had suffered a head injury.  He was transferred to the Royal Melbourne Hospital, where he underwent skull and brain surgery on two occasions. The victim suffered a bleed on the brain that was life-threatening.  He was for a period in the Intensive Care Unit in a life-threatening condition.

10He was transferred to the Royal Talbot Acute Brain Injury Unit for all traumatic brain injury rehabilitation on 12 October 2020.  He remained in hospital for seven months after this incident.

Impact on the Victim

11An additional witness statement from Dr Wendy Castle confirmed the gravity of the injuries suffered by the victim as a result of your attack.  In addition to the surgeries, the victim required medication, speech therapy, social work, and physiotherapy.

12The profound effect that the attack has had on the victim is evident from the continuing consequences he has endured, even after that period of hospitalisation. His ability to independently undertake basic tasks has been significantly impacted.  A formal cognitive assessment revealed he has severely impaired speed of information processing, moderate to severely impaired attention levels, deficits to his vision, moderate impairments to his learning and memory, and severe executive dysfunction across problem-solving, self-monitoring, idea generation, planning and organisation and abstract reasoning. The victim was deemed to have a severe and global cognitive disability with impairment, including severe executive dysfunction and prominent memory impairment.

13He has exhibited a range of behaviours of concern related to his traumatic brain injury.

14There is no evidence before the court to indicate that substantial recovery from these injuries will occur.  The victim now requires a carer to be present at all times.  He is in receipt of NDIS funding and has been referred for ongoing occupational therapy, physiotherapy, and social work whilst he waits for his NDIS services to commence. He has ongoing issues with left-sided weakness in his upper and lower limb.  He requires supervision and assistance with medication management, meal preparation, domestic tasks, and other basic functions.

15The injuries endured by the victim were severe, life-threatening, and have adversely impacted on his quality of life since the incident. They seem likely to have ongoing effects upon him.

16The victim impact statement provided by his mother,[1] who has now become the carer of her adult son, highlights the profound impact that this assault has had.  It has affected her on an emotional level, because of concern for her son's health, and at a very practical level, now having to contemplate how her life and that of her family, will be affected by her son's deficits.

[1]Prosecution Exhibit 2.

Arrest and Record of Interview

17After the police reviewed the CCTV footage, you were arrested and interviewed by the police on 29 September 2020.  In the course of that interview, you denied having assaulted the victim.  In fact, you claimed that you were unaware that a fight had occurred at all.  You claimed you had seen the victim and were happy to see him and had shook his hand. You suggested, falsely, that an unnamed girl had probably got him drunk, 'Probably took money off him and left him dead'. You denied ever touching the victim, and said that if anything, 'I'll protect him'. You said, 'I am not the guy that assaulted him'.

Nature and gravity of offending

18The nature of the offence of recklessly causing serious injury means that it is one that can be committed in a broad variety of circumstances.  Upon analysis, your conduct must be viewed as a very serious example of the offence.

19The attack was spontaneous, but seemingly unprovoked.  The victim was punched three times to the head and the attack continued after he went to the ground, albeit it seemed that the serious injuries were inflicted by the blows already struck before then.

20At the time of the incident, you were subject to a community corrections order imposed in May 2020. That order was imposed for charges including unlawful assault and contravening a family violence intervention order.  You were also on two sets of bail at the time for offending for possessing cannabis and shop theft, which is the subject of the summary charge of committing an indictable offence whilst on bail.

Personal circumstances

21By way of background you are now 21 years old.  You were born in South Sudan, but moved with your parents and siblings to Egypt at the age of one to escape the civil war. Your time in Egypt as a racial minority was very difficult.  You were the subject of racism and physical violence, as well as severe sexual abuse from the age of six.

22You moved with your mother and three of your siblings to Australia when you were eight years old. Two of your older siblings remained in Egypt and your father returned to Sudan. Your parents' marriage was abusive and unstable. You were witness to your father's violence perpetrated against your mother. You have had no contact with your father since coming to Australia.

23Your time in Australia has also had significant difficulties.  Your mother has had problems with alcohol.  She has on occasions been physically and emotionally abusive towards you.  You were placed into foster care at age 15.  It was at around this age that you began to abuse alcohol.

24At age 18, you moved to be staying in share accommodation organised by the Salvation Army. You were forced to leave this accommodation because you had broken the rules and returned to live with your mother.

25I am advised that your mother's circumstances in relation to alcohol have improved significantly since 2012. Your relationship with her, however, has had continual problems. She has previously taken out an intervention order against you. This has now lapsed and I am told that your relationship with her has improved to the point that you speak to her daily by telephone, whilst in custody.  She has indicated a willingness for you to return home to live with her upon your release.

26Your older siblings who came with you to Australia have found much greater stability. Your older brother works as a concreter, your older sister works at the airport, and another sister is studying.

27You have a younger brother who has had some issues with the criminal justice system.

28By way of education you completed Year 10, though it would seem you had challenges at school due to your lack of English language skills.

29You have had little work since leaving school, save for some periods working as a bricklayer.

30In early 2020 you enrolled in a civil construction course and attended that course for two months.  With the onset of the pandemic, the course transitioned to being presented online.  Unfortunately, you were not able to continue your study due to your lack of access to a computer.

31Since being in custody, you have completed various courses, including a course in traffic management.

32You have a son now aged one year.  Whilst you are no longer in a relationship with the child's mother, but you continued to see him on a daily basis prior to being remanded in custody.  The pandemic restrictions have meant that you have not had any contact with your son since being remanded in custody.  Understandably, this has been a distressing development for you.

33By your own admission, you have had severe problems with both alcohol and cannabis use.  Both of these substances have played a significant role in your prior criminal history.

34I am instructed that you have been abstinent from illicit substances whilst in custody.  You have undertaken one course of drug and alcohol counselling, and are developing some insight into the impact of your substance abuse issues upon your offending.

35Your prior criminal history is already lengthy. Most relevantly for the current sentence, this is on my count the fifth occasion that you have come before the court for matters involving violence. Whilst the current matter represents a considerable increase in the gravity of your offending, it is unfortunately consistent with the behaviour you have demonstrated on the previous occasions, where violence has brought you before the courts, your criminal history is also notable for the numerous occasions that you have failed to abide by court orders.

Youthful offender

36You are now 21 years old and were 20 years old at the time of the offending.  I must take into account the principles applicable to sentencing youthful offenders. This means that because of your youth there must be substantial weight placed upon rehabilitation, and as such the weight given to general deterrence and denunciation should be somewhat moderated.

37However, the level of that moderation must be weighed against the seriousness of the offending. In this case, for the reasons I have outlined, this is very serious offending indeed.  Even having full regard for your youth, sentencing objectives such as deterrence, denunciation, just punishment and protection of the community have prominence in the sentencing calculus.

38That said, this is not a case where the offending is of such gravity, and the prospects of rehabilitation so unrealistic, that the weight to be given to rehabilitation is all but extinguished.  Fostering your rehabilitation remains an important sentencing consideration in your case.

Prospects of rehabilitation

39Based on the material before the court, clearly your rehabilitation will not be easily achieved. The psychological report confirms that you are in need of intensive assistance for a variety of problems, especially with regard to drug and alcohol abuse.  It is encouraging that you have remained abstinent from substances over the eight months that you have been in custody.  I also note that you have engaged in educational and rehabilitation opportunities whilst in custody.  You have, despite some difficulties in the past, the ongoing support of your mother.  You also have the incentive to rehabilitate, as you have a young child.

40Having regard to the available evidence, there must be some pessimism about your current prospects of rehabilitation.  They are, however, far from hopeless and will improve if you refrain from drug and alcohol abuse and continue to take educational opportunities as they present. 

41Overall, I consider your prospects of rehabilitation to be guarded, but because of your youth, are still to be afforded significant weight, though as I said, moderated by the prominence I must give to the other sentencing considerations in the circumstances of this case.

42I have had outlined to me both in the course of the plea, and through the psychological report, details of the extreme disadvantage you have endured through your childhood. The exposure you have had to violence, neglect, and alcohol abuse has clearly played a role in leading you to have substance abuse issues yourself.  Your background does provide a basis for somewhat reducing the moral culpability that attaches to this offending.

Impact of COVID-19 pandemic

43I take into account that you have already served a substantial period of time in custody subject to the additional restrictions applicable to the prison environment as a result of the pandemic.  It seems probable that these restrictions will persist for some time into the future. I note that these restrictions, particularly as they relate to your ability to have contact with your infant child, represent an increased burden of imprisonment. I take this account in mitigation of sentence.

Plea of guilty

44You have pleaded guilty to this offence at an early stage in proceedings.  You are entitled to a considerable discount on sentence for that matter.  By your plea of guilty, you have saved the time and cost that would otherwise have been expended on a committal and trial.  You have also spared the witnesses, and in particular, the victim, what would have been the inconvenient and undoubtedly distressing experience of giving evidence.

45I give you particular credit for the utilitarian value of your plea in circumstances where the pandemic has reduced the courts capacity to list matters and has resulted in a considerable backlog of cases.

46As regards the issue of remorse, I have also noted that when you were interviewed by police, you falsely claimed to have had nothing to do with the infliction of injuries to the victim. Since that time, however, you have pleaded guilty and have expressed contrition and regret in the psychological material and in your letter that was tendered to the court.  I consider that you now have genuine remorse for your offending and I take that into account in your favour. 

Mental Health

47

The psychological material, which was unchallenged and which I accept, reveals that since going to custody, you have had significant mental health challenges.  

Ms Latif has noted that you have suffered from significant substance withdrawal symptoms since being remanded, including auditory hallucinations.  She has diagnosed you with depression, albeit she also says that you are not currently suffering from any significant mood issues whilst in custody, and are not suffering from any depressive episode.

48It has been submitted on your behalf that Ms Latif's diagnosis of depression will make imprisonment more burdensome for you, than for someone without that diagnosis, consistent with limb six of Verdins.[2]  The evidence with regard to your mental health whilst in custody, and the causes of those issues, is complicated because of the impact that alcohol withdrawal has had on you.  On balance, I am prepared to sentence you on the basis that some very limited weight should be placed on the increased burden of imprisonment, as a result of your diagnosis of depression. 

[2]        R v Verdins (2007) 16 VR 269 (‘Verdins’).

Deportation

49You are not an Australian citizen and have been residing in Australia on a XB202 humanitarian visa. Pursuant to s 501 of the Migration Act 1958, it is mandatory that your visa be cancelled once you have been imprisoned for a period of one year or more.  A sentence of greater than 12 months for this matter will lead to your deportation, unless the relevant minister is satisfied that there is a reason to revoke that cancellation.

50I cannot speculate as to the probability that the minister will intervene in this way.  I can conclude, however, that the prospect of deportation is a very reasonably distressing one for you.  You have been in Australia since age eight, have a young child and other family who will remain in this country, regardless of your deportation.  The emotional distress caused by the prospect of deportation is particularly acute in your case, in that it would mean you were separated from your infant child.  There is material before the court upon which to conclude that the prospect of a return to South Sudan, a country where you have few family connections, is especially unappealing to you.

51The prospect of deportation will make the burden of imprisonment more onerous and I take this into account in mitigation of sentence.

Submissions

52Your counsel Ms Blair submitted on your behalf that a combination of imprisonment and a community corrections order was an appropriate sentence in all the circumstances. 

53Ms Maguire submitted on behalf of the Director of Public Prosecutions that only a term of imprisonment with a head sentence and a non-parole period could properly reflect the sentencing purposes necessary in the circumstances of this case.[3]

[3]Prosecution Exhibit 3.

54I consider that the gravity of the offending, and the need to reflect both general and specific deterrence, denunciation of the conduct, protection of the community, and the need to impose a just punishment, means that a sentence of imprisonment involving the setting of a non-parole period is required for the offence of recklessly causing serious injury.  I consider that an outcome of this nature is necessary, even having regard for the significant matters in mitigation, including, but not limited to your youth, the plea of guilty and the burden of your prospective deportation.

Sentence

55I have determined that it is also appropriate to impose a period of imprisonment for the uplifted summary charge of committing an indictable offence whilst on bail.

56In relation to that charge, however, I will order that the imprisonment be served concurrently with that imposed on the recklessly cause serious injury charge.  I do this because the conduct comprising that charge is in effect the conduct comprising the recklessly causing serious injury.  

57Further, I have already noted that it is relevant in determining sentence for the charge of recklessly causing serious injury, that it was committed in circumstances where you were on bail.  To impose any additional period of imprisonment to be served for the summary charge would be to doubly punish you for the same conduct.

58In relation to the charge of recklessly causing serious injury, you are convicted and sentenced to a period of two years and six months imprisonment.

59On the summary charge of committing an indictable offence whilst on bail, you are convicted and sentenced to imprisonment for one month, to be served concurrently with the sentence of imprisonment imposed on Charge 1.

60That makes for a total effective sentence of two years and six months.  I order that you serve a period of one year and nine months before becoming eligible for parole.

61I declare that you have served a period of 248 days as pre-sentence detention already served.

62Pursuant to s 6AAA of the Sentencing Act 1991, I declare that but for your plea of guilty, I would have imposed a total effective sentence of three years and three months imprisonment, with a non-parole period of two years and six months.  Are there any other orders that are required?  I will ask you, Ms McGuire?

63MS McGUIRE:  No, Your Honour.  As the court pleases.

64HIS HONOUR:  Thank you.  Ms Calgaro, anything further?

65MS CALGARO:  Nothing further.

66HIS HONOUR:  Thank you.  And that pre-sentence detention is correct as you have calculated it?

67MS CALGARO:  Yes, Your Honour, Ms Calgaro and I had that discussion and we are agreed that that is the correct number.

68HIS HONOUR:  Thank you very much.  Thank you both for your assistance, I will adjourn the court until 11 o'clock.

69MS McGUIRE:  May it please the court.

70MS CALGARO:  The court pleases.

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