Director of Public Prosecutions v Akot

[2024] VCC 1598

.

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-24-00089

DIRECTOR OF PUBLIC PROSECUTIONS

v

WOL AKOT

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JUDGE:	HER HONOUR JUDGE CHAMBERS
WHERE HELD:	Melbourne
DATE OF HEARING:	15 October 2024
DATE OF SENTENCE:	15 October 2024
CASE MAY BE CITED AS:	DPP v Akot
MEDIUM NEUTRAL CITATION:	[2024] VCC 1598

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW - Sentence

Catchwords:              Guilty plea – aggravated burglary – intentionally causing injury – unrelated summary offence of fail to answer bail – serious example of aggravated burglary involving an assault with knives in company with others for a prolonged period – considerations of general deterrence, denunciation and community protection moderated due to youth, difficult childhood experiences and assessment of positive rehabilitation prospects – assessed as suitable for detention in a Youth Justice Centre.

Legislation Cited:      Crimes Act 1958; Sentencing Act 1991

Cases Cited:Bugmy v. The Queen (2013) 249 CLR 571; DPP v. WA [2022] VSC 506

Sentence:                  Aggregate sentence of three years’ detention in a Youth Justice Centre

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms D.S. Guesdon	Office of Public Prosecutions
Victoria
For the Accused	Mr L. Hocking	KPT Defence Lawyers

HER HONOUR:

1Wol Akot, following a sentence indication given by me on 12 September 2024, you pleaded guilty to the offences of aggravated burglary contrary to s 77 of the Crimes Act 1958 ('the Act'), the maximum penalty for which is 25 years' imprisonment and intentionally causing injury contrary to s 18 of the Act, the maximum penalty for which is 10 years' imprisonment.

2You have also pleaded guilty to an unrelated summary offence of failing to answer bail contrary to s 30 of the Bail Act 1977, the maximum penalty for which is two years' imprisonment.

3These offences arise from the events of 26 April 2023, when you and others, armed with knives, forced your way into the home of the 37-year-old male victim, before repeatedly assaulting him and cutting patches of his hair. The assault resulted in the victim suffering a fractured rib, a fracture to his hand, and cuts, bruising and bleeding. You were 19 years old at the time of this offending and you have admitted your prior criminal history.

Circumstances of offending

4The circumstances of your offending are detailed in the Summary of Prosecution Opening for Plea dated 9 October 2024, which is the agreed basis upon which you are to be sentenced.

5On 25 April 2023, at around 4.16 pm, the victim, Mr Neil, invited a friend, Mr Hakiem to his apartment in Richmond. At approximately 6.30 pm, Mr Hakiem invited a third person, Mr Madul over to the apartment.  Mr Madul is known by the name 'Internet'.  When he arrived, Mr Hakiem introduced 'Internet' as Peter.  At around 8 pm, Mr Sari arrived at the apartment with another unknown male.

6After drinking alcohol at the apartment with Mr Neil and Mr Hakiem, Mr Madul invited you over. You arrived at the apartment at 1.22 am.

7After you arrived, Mr Neil attempted to flirt with you, and placed his hand near your penis. You took offence at this and threatened Mr Neil with a knife.[1] He then fled from the apartment. CCTV footage of the apartment depicts Mr Neil leaving the apartment at 2.30 am while you are seen holding a knife at 2.31 am. Mr Neil returned to his apartment at which point you had left.

[1]This is an uncharged act.

8The next evening, on 26 April 2023, Mr Neil left his apartment to purchase some wine, returning home at approximately 7.38 pm. As he returned home, he saw three males hiding together in the street, wearing black clothing. The three males were you, a 17-year-old co-offender and 18-year-old William Mariak. Mr Neil recognised you as the male who had pulled a knife on him the night before.

9The three of you approached Mr Neil as he reached the back door of his house. You were each armed with knives. Two of you displayed the knives to Mr Neil before entering his apartment, while he saw the third person holding a knife after entering. The three of you were aware that at least two of you were armed with knives at the point you entered the victim's apartment.

10The three of you forced the victim into his apartment by grabbing his arm and leading him inside. One of you took the keys off the victim and used them to open the door. The 17-year-old co-offender told the victim he would be shot if he ran. The three of you entered the apartment with the common intention of assaulting the victim once inside. This offending is the subject of Charge 1 – aggravated burglary.

11Immediately upon entering, you began assaulting Mr Neil. One of you made a phone call saying words to the effect, 'We got him', and to 'send the other boys up'. After this call, at approximately 8.22 pm, two other males arrived at the victim's apartment.

12

While the five co-offenders were inside the house, you all took turns assaulting

Mr Neil. Over the course of approximately 44 minutes, Mr Neil was hit on his hand with a hammer, hit with a spoon and an electrical cord, in addition to being punched and kicked. His hair, which is braided with dreadlocks, was also cut out in patches, during the assault. The victim does not recall exactly how many people were in his apartment when each portion of the assault was taking place but does recall that you were present the whole time.

13You, together with two co-offenders left the apartment at 8.58 pm. Twelve minutes later the other two co-offenders left. At 9.14 pm, Mr Neil left his apartment to seek assistance and was ultimately taken to the Alfred Hospital for assessment and treatment of his injuries.

14Arising from the assaults, Mr Neil sustained a costal (rib) cartilage fracture, a metacarpal fracture (to his hand), a large haematoma to his forehead, combined with other cuts, bruising and bleeding. As stated, his braided hair was cut out in patches, as can be seen from the photographs taken by police when they attended the victim in hospital.

15On 22 May 2023, two of the co-offenders were arrested after police executed a search warrant in the Melbourne CBD. Some hours later, you voluntarily presented at the Melbourne West police station, where you were arrested. In accordance with your rights, you made no comment when questioned by police regarding this incident.

16

You were remanded in custody on 22 May 2023 before being granted bail on

14 December 2023.

17You have also pleaded guilty to an unrelated summary offence of failing to answer bail. On 24 February 2024 you were charged with a number of offences, including robbery and possession of a drug of dependence, and were bailed to attend at the Melbourne Magistrates' Court on 6 April 2023. You failed to do so. A warrant was issued and executed at the time of your arrest on 22 May 2024.

Nature and gravity of offence

18The gravity of the offence of aggravated burglary is reflected in the maximum penalty of 25 years' imprisonment.

19This was a serious example of that offence. You, in company with others, attended at the victim's home at night, armed with knives, intending to enter his home to assault him. The attack on the victim in his home was planned to respond to his indecent behaviour towards you the night before. No matter how offended you were by his perceived conduct, it could never justify this kind of violent response. The presence of knives can only have acted to elevate the victim's fear about what was going to happen.

20Although the offence of aggravated burglary is completed upon entry to the home, it is relevant that once inside, you and the others, immediately began assaulting the victim.

21The offending inside the house occurred over a reasonably prolonged period, resulting in the victim being repeatedly punched, kicked and, at one stage, hit with a hammer, by the group of you. In an act of revenge, his hair was cut out in patches. The charge of intentionally causing injury arises from this conduct, which occurred at various times over a period of close to 45 minutes. You and the others had adequate time to stop and desist during the time you were in the victim's apartment, but you did not.

22The victim impact statement provided by Mr Neil details the significant impact of your confronting and violent offending, describing his emotions as overwhelming. He now experiences feelings of anxiety, particularly at night; fearing an encounter with others. He describes a pervasive feeling of paranoia, that impacts on his ability to function every day. He states that the fracture to his hand has proved difficult to heal, leaving him in pain. Mr Neil states the trauma of this incident led to his decision to relocate to New South Wales to 'rebuild a life'.

23Mr Neil was entitled to be safe in his home. It is fortunate that his injuries were not more significant.

24Your moral culpability for your offending is significant, however it is also informed by your personal circumstances to which I will now turn.

Personal matters

25Your childhood was one marked by significant hardship, deprivation and trauma.

26You were born in November 2003 in a refugee camp in Egypt after your parents fled the civil war in South Sudan. You are the middle child of six siblings. Your family migrated to Australia in 2004, when you were one.

27Between March 2007 and June 2017, when you were between 3-13 years old, you and your siblings were the subject of 10 separate reports to child protection services regarding allegations of inadequate supervision and parental substance abuse. Child protection reports describe your childhood as chaotic and unsupportive, with you and your siblings frequently left unsupervised.[2] You often went without food, clean clothes, bathing and medical care. Your father is reported to have abused alcohol at the time and, as a result, you experienced and witnessed family violence at his hands.

[2]Department of Justice and Community Safety Pre-Sentence report dated 9 October 2024, under the heading 'Family Circumstances'.

28You and your siblings were removed from the care of your parents on three separate occasions between 2012 and 2015, being placed with other Sudanese families in the community.

29In 2013, your youngest sister, aged nine months, died of a heart condition at the Royal Children's Hospital. Sadly, in December of that year, your mother took her own life. You were then only 10 years old.

30After a period, you were returned to your father's care, but report that your father was physically abusive. You had limited contact with your father since the time of your early adolescence, until recently. You have told Youth Justice that your more recent contact with your father has been positive.

31You spent some of your adolescence being cared for by your older brother. A subsequent report to child protection services related to your brother experiencing a heroin overdose in 2016. Your brother is now imprisoned.

32Although you report being a 'naughty kid' in primary school, you developed good literacy skills and achieved good grades. However, following your mother's death, your behaviour deteriorated significantly. You attended Melton College for secondary school but had difficulty engaging in school and would abscond to engage in anti-social behaviour with peers from around the time you were 14. You were expelled from school for behavioural problems in 2018.

33You began using cannabis at the age of 13, and abusing alcohol significantly from the age of 16, often mixed with Xanax and MDMA.

34Your criminal history commenced on 6 April 2018 when you were placed on a Youth Supervision Order (YSO) for six months, without conviction, for offences of theft from a shop, affray, intentionally causing injury and committing an indictable offence whilst on bail.

35On 23 April 2019, you were placed on a YSO for six months, without conviction, for offences of recklessly causing injury, shop theft and committing an indictable offence whilst on bail.

36On 23 January 2020, you were released on a Good Behaviour Bond (GBB), without conviction, in relation to an attempted armed robbery. You were released on a further Good Behaviour Bond in November 2021 for an unlawful assault.

37In 2020, at a time when you were living with your father, you were charged with murder and were remanded in custody. You remained on remand for two years. Following a trial, you were acquitted of the offence of murder but pleaded guilty to an affray, for which you were sentenced to two months' in youth detention on 29 August 2022, with 736 days of pre-sentence detention declared.

38In November 2022, you were placed on a Good Behaviour Bond for the offences of assaulting an emergency worker on duty, intentionally causing injury and property damage. Subsequent to this matter, you were sentenced to 30 days' detention for offences of robbery, possession of a drug of dependence and failing to answer bail.

39To your credit, you completed VCAL in custody at the Malmsbury campus of Parkville College, being the first student to do so.

40You were assessed for the purposes of this plea by psychologist, Mr Austin Campbell. In his report dated 13 October 2024, Mr Campbell detailed your personal history, and noted a previous diagnosis of Post-Traumatic Stress Disorder. You told Mr Campbell that following your release from custody in 2022, you relapsed into regular alcohol use, drinking on a near daily basis, including at the time of this offending. Mr Campbell is of the opinion that you presented with an Oppositional Defiant Disorder throughout this period, and with an Alcohol Use Disorder at the time of the offending.

41Following his assessment, Mr Campbell concluded that you did not meet the diagnostic criteria for Post Traumatic Stress Disorder but is of the opinion that your overall 'functioning was impacted by past traumatic experiences and intergenerational trauma', resulting in 'hypervigilance' and a heightened reaction to perceived threats.

42You were granted bail, subject to engagement with Youth Justice, on 14 December 2023. Since this time, you have lived with your sister and her family, have engaged positively with Youth Justice, and have secured employment as a contractor for a local council, earning approximately $800 per week. With the support of Youth Justice and others, you have recently obtained your driver's license. These developments are all positive. You retain a close relationship with your sister and other siblings and your older sister is a source of significant support for you.

Matters in mitigation

43On your behalf the following matters were raised in mitigation of your sentence.

44First and foremost, you have pleaded guilty to these offences through which you acknowledge responsibility for your offending. Although yours was not an early guilty plea, it saved the court and the community the resources and time associated with a trial. There is also remorse inherent in a guilty plea. I have taken your guilty plea into account in moderating your sentence.

45Secondly, the deprivation and trauma you experienced during your formative years is relevant to your sentence. In the landmark decision of Bugmy[3], the High Court stated that the experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life. The Court further explained that the effects of profound childhood deprivation do not diminish with the passage of time and repeat offending. Here, your childhood was marked by a chaotic and unsupported environment, leading to you and your siblings being removed from the care of your parents at times. Your childhood was impacted by neglect, dislocation and exposure to violence. The death of your mother when you were 10 was a significant loss for you. I give full weight to your deprived upbringing and background in mitigation of your sentence. Your moral culpability cannot be equated with an offender whose formative years have not been marred in this way.

[3]Bugmy v The Queen (2013) 249 CLR 571. 594-5, [43]-[44].

46When you were assessed by Mr Campbell, you told him that you had been out drinking when you were invited to Mr Neil's house. You had never met him before. You said that when he made sexual advances towards you, you felt uncomfortable, distressed and agitated. You had consumed a significant amount of alcohol over the course of the night, resulting in your decision to return to the victim's home with friends to exact retribution for this conduct.

47Mr Campbell draws a connection between your deprived upbringing and your offending. He states that throughout your childhood and adolescence, you developed 'attitudes supportive of the use of violence as a means of resolving interpersonal conflict'. He concludes that your abuse of alcohol and other substances, commencing in adolescence, were a maladaptive response to reduce or avoid experiences of distress.

48I accept that Mr Campbell's assessment supports a finding that both the general and specific limbs of Bugmy are engaged, to the extent that your dysfunctional upbringing predisposed you to react in a confrontational way to the perceived insult. However, it is difficult to discern the extent to which your difficult background influenced your acts, particularly in the context of your high level of intoxication on the night. However, I do attach some limited weight to the specific limb of Bugmy.

49The other significant matter in mitigation of your sentence is your youth. You were 19 at the time of the offence and are now 20. The law recognises that young offenders are more prone to rash, ill-considered actions and that the youth of an offender should be a primary sentencing consideration for a sentencing judge where it properly arises. In the case of young offenders, rehabilitation is usually far more important than general deterrence; recognising that the rehabilitation of young offenders benefits the community as well as the offender. Generally, a young offender is not to be sent to an adult prison if such a disposition can be avoided. The threshold for offending that justifies adult imprisonment may be quite high in the case of a young offender.

50The law also requires the court to balance the youth of the offender against other factors, including the seriousness of the offence. In this case, I consider your youth remains a prominent sentencing consideration notwithstanding the fact this was a serious example of the offence of aggravated burglary.

51The offences before the Court are your first offences committed as an adult. On your behalf, Mr Hocking submits that your time in adult custody was a significant 'wake-up call'.

52This submission is borne out by your engagement with Youth Justice since being granted bail on 14 December 2023. You have attended 31 scheduled appointments with your case manager, and have only missed one appointment. Youth Justice reports that you are 'respectful, polite and receptive to Youth Justice supports'. There have been no concerns with your compliance or behaviour over the past 10 months on bail. You have engaged in youth offending programs, in addition to weekly, then fortnightly, drug and alcohol treatment with YSAS. Your youth outreach officer with YSAS, Mr Walter Dowie, describes you as a resilient young man, and reports that you have refrained from substance abuse since being bailed.

53In January 2024, you agreed to be referred to Banksia Gardens for support to obtain employment, your driver's licence and to engage in other community programs. Mr John Rutter, your Youth Justice Social Worker, assisted you in purchasing driving lessons and to obtain the necessary identification documentation in order to obtain your driver's license. You have also volunteered your time with Banksia Gardens, supporting other young people with sport activities.

54You have been selected as a member of the Youth Advisory Group as part of the work undertaken by the Commission for Children and Young People to support Sudanese youth. In a letter written for the Court by the CEO of the Commission, Ms Leanne Barnes dated 14 October 2024, you are described as a highly engaged, thoughtful member of this group, having participated in multiple consultations and given much of your time to this work. In Ms Barnes’ letter, she states that 'with the right guidance and continued engagement, [the Commission considers you] can continue to develop into an inspiring leader and contribute meaningfully to [your] community'.

55With the assistance of Mr Chris Bell, your Trades Mentor at Parkville College you have obtained various jobs, including as a 'truck jockey' with CityWide and in June 2024, casual work in a warehouse with Staffing Australia. In that role, you were supported to obtain a forklift licence. On 26 July 2024, you commenced work as a farm hand/labourer. Support letters provided to the court describe you as a valued member of the team, demonstrating 'remarkable growth and adaptability'; quickly becoming proficient in various aspects of landscaping. Mr Bell writes that you are eager to continue in your professional development, including obtaining licenses to operate excavators and bobcats. You have remained largely abstinent from alcohol since residing with your sister and now focus on time with her and her family.

56Notwithstanding your criminal history, with added maturity, in addition to family, youth justice and other supports, you have demonstrated positive prospects of rehabilitation over the past ten months. I consider it consistent with community protection to ensure that the sentence I impose further facilitates, rather than inhibits, this progress.

57The role played by specific deterrence in sentencing you is correspondingly reduced, however given your relevant criminal history, specifically deterring you from future violence still has a role to play.

58In a broad sense, I have also had regard to the time you spent in custody on remand for two years commencing in August 2020 before being acquitted on a charge of murder. You had served 736 days, which were declared as pre-sentence detention by the sentencing judge, when you were sentenced to two months' detention for the offence of affray. As her Honour noted when sentencing you:

“A particular difficulty in the circumstances of this case is the long-time already spent in custody due to the charge for which you were found not guilty. But for the more serious charge of murder, you would not have spent as long in custody as you have.”

59During this time on remand, the COVID-19 pandemic had resulted in significant restrictions in custodial settings, adding to the burden of your experience of custody at that time. I have taken this lengthy time on remand, noting you were ultimately sentenced to two months' detention, into account in determining an appropriate sentence for this offending and in applying the sentencing principle of totality.

Other sentencing considerations

60In cases such as this, the most significant sentencing considerations are general deterrence, denunciation and community protection. For the reasons I have explained, these considerations are moderated in your case due to your youth, your difficult childhood experiences, and my assessment of your positive future prospects.

61This is a not an easy sentencing exercise. The sentence I must impose must not only denounce your offending conduct and send a clear message to others who may offend in this manner, but also acknowledge your young age and promote your rehabilitation.  For this reason, I adjourned the plea hearing for you to be assessed as to your suitability for youth detention. The Youth Justice assessment report dated 9 October 2024, found you suitable for detention in a Youth Justice centre, stating:

…it cannot be disputed Mr Akot has made significant progress while in the community to address criminogenic risks and has demonstrated notable compliance with the conditions of the Youth Justice Supervised Bail Program…

…Other indicators in support of Mr Akot's prospects for rehabilitation is the strong familial support provided by Mr Akot's older sister, the relationship and pro-social modelling he demonstrates for his niece and nephew, and the re-establishment of his relationship with his father. Mr Akot has been able to achieve a number of his personal goals including engaging in employment, obtaining his driver's license and remaining abstinent from substance use. Mr Akot has a strong, collaborative and supportive Care Team who will continue to provide Mr Akot support.

62The report of Youth Justice also assesses that you would be vulnerable within an adult prison setting, particularly given your history of complex trauma. In that regard, Mr Campbell assesses that you would benefit from engagement in psychological assistance to develop 'adaptive coping strategies' to respond to distress. Engaging in such counselling would be beneficial to your ongoing rehabilitation. Related to this, your future prospects also significantly depend on your ability to abstain from excessive alcohol use in the long term.

63Having regard to the recommendation of Youth Justice, and for the reasons I have outlined, I am satisfied that the criteria for Youth Detention in s 32 of the Sentencing Act 1991 are met. Such a sentencing disposition is supported by the prosecution in the circumstances of this case.

Sentence

64Balancing the matters to which I have referred, I now sentence you as follows.  Mr Akot, if you could please stand.

65On Charge 1 – aggravated burglary and Charge 2 – intentionally causing injury, you are sentenced to an aggregate sentence of three years' detention in a Youth Justice Centre.

66These two offences arise from the same facts and circumstances, and accordingly an aggregate sentence may be imposed pursuant to s 32A(1)(b) of the Sentencing Act 1991.

67On summary Charge 5 – fail to answer bail, you are convicted but otherwise discharged pursuant to s 73 of the Sentencing Act 1991. In doing so, I have regard to the fact that you self-presented to police on 22 May 2023.

68Pursuant to s 35 of the Sentencing Act 1991, I declare 177 days of pre-sentence detention to be reckoned as served under the sentence I have imposed.

69Mr Akot, the matter of parole is a decision for the Youth Parole Board, and the Court has no role to play.

70Finally, pursuant to s 6AAA of the Sentencing Act 1991, I indicate that had you not pleaded guilty, the sentence I would otherwise have imposed is a sentence of four years' youth detention.

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