Director of Public Prosecutions v Akot

[2018] VCC 1615

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR-18-00961

DIRECTOR OF PUBLIC PROSECUTIONS

v

AREE AKOT

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JUDGE:	HIS HONOUR JUDGE CARMODY
WHERE HELD:	Melbourne
DATE OF HEARING:	22 August 2018
DATE OF SENTENCE:	4 October 2018
CASE MAY BE CITED AS:	DPP v Akot
MEDIUM NEUTRAL CITATION:	[2018] VCC 1615

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW
Catchwords:  Cause Serious Injury Intentionally
Legislation Cited:

Cases Cited:R v Mills [1998] 4 VR 235, R v Wyley [2009] VSCA 17, Azzopardi v The Queen [2011] VSCA 372

Sentence:Total effective sentence of three years and ten months' imprisonment.  I fix a non-parole period of two years and six months.                  

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms N. Burnett	Director of Public Prosecutions
For the Accused	Mr J. McQuillan	Pica Criminal Lawyers

HIS HONOUR: 

1Aree Akot, on 22 August 2018, you pleaded guilty to one charge on the indictment No.H13265561:

Charge 1, is intentionally cause serious injury to Sasha Beganovic on 27 November 2017.  This offence has a maximum penalty of 20 years' imprisonment. 

2You also conceded that two related summary offences being transferred to this court pursuant to s.145 of the Criminal Procedure Act 2009. You pleaded guilty to:

Charge 11, committing an indictable offence whilst on bail; and

Charge 12, failing to report on bail at the Melton police station. 

Both of those charges have maximum penalties of three months' imprisonment.

3You also admitted your prior criminal history.  On 17 July 2015, at the Sunshine Children's Court you were released on a bond without conviction for 12 months for the charge of intentionally cause injury.  At the time of that court appearance, you were 16 years old.

The Circumstance of Your Offending

4At the time of the offence you were 18 years old. Your victim, Sasha Beganovic was 40 years old.  You and Beganovic have known each other for approximately five years.  You lived in the same neighbourhood and Beganovic associated with your brother, Kuot.  At the time of the offending, you believed Beganovic was the cause of your brother's heroin addiction and the non-fatal overdose that he took. You also believed that Beganovic had supplied your brother with heroin before raping him and causing him to become HIV positive. 

5At approximately 5.30 pm on Monday, 27 November 2017, Beganovic left his house at Kurunjang to walk the dog.  Beganovic's housemate, McMahon, was at home with her friend, Paula Bertaloff. 

6You and an unknown offender of Sudanese appearance knocked on the door of Beganovic's house.  Ms McMahon answered the door.  She recognised you.  She told you Beganovic was not home.

7You and the co-offender then drove your white Peugeot sedan a short distance away and waited for Beganovic to return home. 

8At approximately 6.45 pm, Beganovic returned home.  A short time later Beganovic answered a knock at the front door and recognised you.  Beganovic went outside and started walking up the driveway towards the street with you on his left-hand side.  Beganovic knew you were angry with him about his brother and wanted to resolve this problem. Beganovic stated that he wanted to talk it out with you and to let you know that Kuot was lying and he had nothing to do with your brother's overdose. 

9As you were walking along, Beganovic said to you, "All right Aree what's up?”  Beganovic then observed that the unknown - your co-offender appeared from behind the bins next to his garage.  You then moved to the right of Beganovic and the co-offender walked to the left of Beganovic.  Beganovic kept saying, "What's going on?”  You and the co-offender did not respond.

10You then hit Beganovic to the left side of his face with a clenched first.  Beganovic grabbed you by your shirt to subdue you and to stop the assault.  Beganovic managed to control you by grabbing your arms before the co-offender started to wrestle with Beganovic.  The co-offender was saying, "You gave heroin to my brother". 

11Beganovic wrestled with you and the co-offender.  During the struggle you said, "Get the hammer".  Your co-offender passed a claw hammer to you.  You have then attempted to strike Beganovic to the head with the hammer but he managed to block the blow.  Beganovic and you struggled for control of the hammer before the co-offender struck Beganovic to the legs with a hockey stick.

12The blow caused Beganovic to fall to the ground on his back.  As Beganovic fell to the ground, he has pulled you down with him, which caused the hammer to fall free.  Beganovic heard you saying, "Grab the hammer".  Beganovic was then struck on the back of the head with a hammer.  He is unsure who inflicted the blow with the hammer.  The force of the blow caused Beganovic to become semi-conscious.  While Beganovic was lying on the ground, you stood over the top of him and struck him on the legs with the hammer.  That is the charge of causing serious injury intentionally.

13Ms McMahon could see and hear the fight and rang 000.  Mr Beganovic was on the driveway.  Another resident, Jessica Stokes observed the man on the ground yelling "Stop it, stop it" through her security door and recognised
Mr Beganovic's voice.  She observed one of the males striking him to the head with a hockey stick, while the second male punched him to the body with clenched fists.  She heard one of the attackers saying, "Why the fuck did you give my brother heroin?”

14Stokes did not intervene because she was scared and stated it was going on for a long time.  Stokes heard another resident saying, "That's enough guys, leave him alone".  You and your co-offender then left and drove away in your white Peugeot.  Mr Beganovic was transported to The Royal Melbourne Hospital for emergency medical treatment by ambulance.  No weapons were located at the scene of the assault by the police.

15At approximately 1.25 am on Tuesday, 28 November 2017, police executed a search warrant at your address at 54 Cotton Field Way in Brookfield.  You made admissions and were arrested.  You identified your clothing and the following items used during the assault and they were a pair of beige steel-cap boots with visible blood stains on the toe area located in the garage at the house and a blue-handled claw hammer located in the boot of your white Peugeot vehicle.  A second claw hammer located in the boot was also seized.

16At about 3.55 am you were interviewed at the Melton police station.  You told police the following things: 

·That you went to Beganovic's unit in a white Peugeot sedan with your co-offender;

·Beganovic was not home and you waited for 30 minutes to an hour for him;

·When you went back, Beganovic was at home and you spoke with him for a bit and then you assaulted him;

·You said you gave Beganovic a punch in the face and then Beganovic pulled a knife and that is when his mate kicked the knife out of Beganovic's hand.  Beganovic fell and then you have given him a few punches to the face;

·You were smashing Beganovic's knees with the hammer and then kept kicking him in the head;

·Beganovic kept lying to you; 

·While you were wrestling, your mate was kicking Beganovic in the head and that is when you told your mate, "Grab the hammer";

·Your mate ran and grabbed the hammer from the car;

·You said that you just kept his legs and my mate just kept kicking him in the face;

·Your father had told you that your brother had been drugged by someone or raped;

·Your brother said Sasha had drugged him;

·You said that you did what you did because Beganovic drove your brother into heroin and then gave him HIV or hepatitis C;

·You said that you had hit Beganovic on the knees about ten times;

·The aim was for Beganovic not to walk again;

·You said that two of the back neighbours came outside;

·You said you left Beganovic when he was on the ground;

·You said you threw the knife across from Beganovic's house;

·You said that you were planning on crippling Beganovic and wanted him to be put in a wheelchair for what he did to your brother;

·You have accidently hit Beganovic once in the head with the hammer when he sat up; and

·You had asked a lot of people a lot of questions and they all led you back to Sash, as you refer to Mr Beganovic.

17The injuries to Mr Beganovic were as follows: 

·A depressed right parieto-occipital skull fracture; 

·Left facial fractures (zygomatic arch fracture, a left medial and inferior orbital wall fracture); 

·Tiny traumatic subarachnoid haemorrhage; and   

·A right femoral condyle fracture.

18Mr Beganovic underwent the following medical procedures:

·Surgery for his skull fracture with neurosurgery;

·Maxillofacial surgery to repair his eye and that area. 

·Orthopaedic knee splint and protected weight bearing.

19Beganovic provided the police with an updated statement in March 2018.  He stated that he suffered from daily migraines and problems with his knee. 

20At the time of this offending, you were on bail for other matters.  You were also required to report at the Melton police station on the day of the offence.  You did not report to the police on the 27/11/2017. 

21This was a vicious attack on Mr Beganovic, involving the use of a weapon and in the company of a co-offender.

Your Personal Circumstances

22At the time of the offence you were 18 years old.  You are now 19 years old. At the time of the offence you were living with your father and four siblings aged between 17 years old and 5 years old. Your Mother committed suicide when you were 15 years old. One of your siblings died aged nine months, some 18 months before your mother’s death.

23Upon your mother’s death your father gave up working. Subsequently there was pressure on you as the eldest son to go out and work in effect become the family bread winner.

24You were born in the city of Khartoum in Sudan. Your father was in the army and had stable employment. As a young child you had medical problems with your legs and your family initially moved to Egypt to obtain treatment for you. After a year or two in Egypt, your family moved to Australia when you were six years old.

25You started school in grade prep and attended St Albans Primary School at Grade two-three. You did not speak English when you started at school. You attended a number of different primary schools. You always had difficulties with maths, reading and writing (You still do). Your letter to the Court expressing your remorse (Exhibit “5”) was written for you by a fellow prisoner. Associate Professor Carroll in his report dated 1 August 2018, noted that you were unable to add 14 plus seven correctly or multiply nine times four.

26Nevertheless, you attended Kurunjang Secondary College to Year 10 level. You left school at age 17 years. You then attended trade school at Sunshine for a year and successfully completed Certificate I, II and III in Carpentry. You subsequently commences as a labourer with Ashley Russell. Mr Russell placed you on a carpentry apprenticeship but your incarceration for these offences has interrupted your progress in the trade. Your earnings as an apprentice went to support your family.

27You have a history of drug use including Cannabis, Xanax, Ecstasy, GHB and alcohol. You are currently prescribed Olanzapine (5ml) whilst in custody. Your parents were abusers of alcohol on your report to Professor Carroll. You told Professor Carroll you would consume up to four bottles of spirits at one session when not in custody. Professor Carroll did not think that history of alcohol intake by you was credible.

28You have one prior Court appearance. On 17 July 2015, at Sunshine Children’s Court you were placed on a Good Behaviour Bond for 12 months without conviction for Intentionally Cause Injury. The prosecutor told the Court this offending occurred in 2014 when again you have wrongly taken a violent course in defence of or revenge for a perceived wrong against your brother Kuot.

29Professor Carroll noted in his report dated 1 August 2018, you had significant cognitive deficient. Unfortunately Professor Carroll did not give any testing or diagnostic analysis for such a finding or opinion. He also diagnosed you as suffering from a Mixed Personality Disorders and Mixed Substance Abuse Disorder. Professor Carroll did not opine that the consideration of Verdins case apply to you. He was of the opinion there was no strong indication for psychiatric medication. Professor Carroll’s opinion was given your age that a Youth Justice Centre Order should be given serious consideration by the sentencing Court.  

30I turn to your personal circumstances.  At the time of this offending you were 18 years old.  You are now 19 years old.  At the time of the offence you were living with your father and your four surviving siblings aged between 17 and 5 years old.  Your mother committed suicide when you were 15 years old.  One of your siblings died aged nine months some 18 months before your mother's death.  Upon your mother's death, your father gave up working.  Subsequently there was pressure on you as the eldest son to go out and work and in effect become the breadwinner.

31You were born in the city of Khartoum in Sudan.  Your father was in the army and had stable employment.  As a young child you had medical problems with your legs and your family initially came - moved to Egypt to obtain treatment for you.  After a year or two in Egypt, your family moved to Australia when you were six years old.  You started school in grade prep and attended at St Albans primary school at grades two and three.  You did not speak English when you started at school.

32You attended a number of different primary schools.  You also had difficulty with maths, reading and writing.  You still do.  Your letter to the court expressing your remorse, which was Exhibit “5”, was written for you by a fellow prisoner.  Associate Professor Carroll in his report dated 1 August 2018, noted you were unable to add up four plus seven correctly or to multiple nine by four.  Nevertheless you attended Kurunjang secondary college to year ten level.  You left school at the age of 17.  You then attended trade school at Sunshine for a year and successfully completed certificates I, II and III in carpentry.

33You subsequently commenced as a labourer with Ashley Russell.  Mr Russell placed you on a carpentry apprenticeship but your incarceration for these matters has interrupted your progress in that trade.  Your earnings as an apprentice went to support your family.  You have a history of drug use including cannabis, Xanax, ecstasy, GHB and alcohol.  You are currently prescribed olanzapine which is 5 millimetres - millilitres, sorry, whilst in custody.

34Your parents were abusers of alcohol on your report to Professor Carroll.  You told Professor Carroll you would consume up to four bottles of spirit at one session when you were not in custody.  Professor Carroll did not think that history of alcohol intake by you was credible. 

35You have one prior court appearance.  On 17 July 2015, at Sunshine Children's Court you were placed on a good behaviour bond for 12 months without conviction for intentionally causing injury.  The prosecutor told the court this offending occurred in 2014, when again you have wrongly taken a violent course in defence of or revenge for perceived wrong against your brother Kuot. 

36Professor Carroll noted in his report dated 1 August 2018, you had significant cognitive deficits.  Unfortunately Professor Carroll did not give any testing or diagnostic analysis for such a finding or opinion. He also diagnosed you as suffering from mixed personality disorder and mixed substance abuse disorder.  Professor Carroll did not opine that the considerations of Verdins case applied to you.  He was of the opinion there was no strong indication for psychiatric medication.  Professor Carroll's opinion was given your age that a Youth Justice Centre Order should be given serious consideration by the sentencing court.

Sentencing Considerations

37The basic purpose for which a court may impose a sentence of just punishment, deterrence both specific and general, rehabilitation and denunciation of your actions and the protection of the community.  In sentencing you I must have regard to a range of factors such as the seriousness of your offending and your culpability for it and your personal circumstances. 

38I am also required to balance the interests of the community in denouncing your criminal conduct with the interests of the community in seeking to ensure, as far as possible, that you as an offender are rehabilitated and reintegrated into society.

39I am also required to take into account current sentencing practices in fixing your sentence.  That enquiry is directed particularly but not exhaustively to the kinds of sentences imposed in comparable cases and the statistics of those sentences at the time.  I have considered the statistics and the current sentencing practices, mindful that each case must be considered in the light of its own particular circumstances and many of the cases would be distinguishable from your case as indeed they are from one another.  Of course, current sentencing practices is only one of the considerations I have to take into account.

40Further to that you have pleaded guilty.  You have pleaded guilty at a relatively early stage in these proceedings.  The plea was indicated at the appropriate time.  Your plea of guilty has a utilitarian value of allowing the orderly and effective administration of justice.  There is a certainty of outcome and a resolution of the substantive issues raised by your offending.  Your plea allows for the preservation of court and police resources to deal with other matters. Your plea vindicates the public confidence in the legal process set up to protect the community.  You have by your plea relieved your victim from giving evidence against you.  It facilitates some closure for him as the victim of your offending.

41As I say, at the time of the offending you were 18 years old.  You have recently turned 19.  You are a young offender.  You have one prior court appearance.  It is a principle of sentencing law that when a young offender, such as yourself, is to be sentenced, the sentencing disposition should be tailored, taking into account all other sentencing considerations, to promote the offender's rehabilitation. This approach serves the interests of the individual offender and the community as a whole.

42In the case of R v Mills which is reported at [1998] 4 VR 235, three propositions of sentencing were set out:

“i. Youth of an offender, particularly a first offender, should be a primary consideration for a sentencing court where that matter properly arises. 

ii. In the case of a youthful offender, rehabilitation is usually far more important than general deterrence.  This is because punishment may in fact lead to further offending.  Thus, for example, individualised treatment focusing on the rehabilitation is to be preferred.  (Rehabilitation benefits the community as well as the offender.)

iii. A youthful offender is not to be sent to adult prison if such a disposition can be avoided, especially if he is beginning to appreciate the effect of his past criminality. The bench mark of what is serious as justifying adult imprisonment may be quite high in the case of a youthful offender. And where that offender has not previously been incarcerated, a shorter term of imprisonment may be justified. This proposition is particularly applicable in general principles of sentencing set out in s.5 (4) of the Sentencing Act.”

43In more recent times the Court of Appeal has made pronouncements of the consideration of youth in sentencing practices.  In the case of Wyley reported at [2009] VSCA, President Maxwell said as follows:

"Mills constantly reminds sentencing courts, and this court on appeal, that there is great public benefit in the rehabilitation of an offender and in maximising the prospect that the offender will carry out a law-abiding life in the future.  But that consideration is not unique to young offenders.  Nor is there any one correct answer as to how the balance is to be struck between that consideration and others which may point towards a period, or a longer period, of imprisonment, rather than a non-custodial sentences.  Thus understood, the later cases of DPP v Lawrence and R v Nguyen are not to be viewed as 'excluding the principles of Mills', but simply as instances of how those principles are to be applied.  [He goes on].  As counsel properly conceded toward the end of his submissions, there is a role for general deterrence to play in relation to every class of cases.  In relation to certain classes of cases, however, general deterrence may have a particularly important role to play.  The present case is of that kind.  Violence of this kind [that is what this case was all about], in circumstances of this kind, is so prevalent, that general deterrence is seen to have particular importance.  But, again, the role of general deterrence will vary with the circumstances of the case."

44In short, I add, crimes of violence call for general deterrent considerations.  These issues were recently considered in the case of Azzopardi v The Queen which is report at [2011] VSCA 372, where JA Redlich with whom Coghlan and Macaulay AJJAs agreed and said as follows:

“The general proposition which flows from these authorities is that where the degree of criminality of the offences requires the sentencing objectives of deterrence, denunciation, just punishment and the protection of the community to become more prominent in the sentencing calculus, the weight to be attached to youth is correspondingly reduced.  As the level of seriousness of the criminality increases there will be a corresponding reduction in the mitigating effects of the offender’s youth.  But only in the circumstances of the gravest criminal offending and where there is no realistic prospect of rehabilitation may the mitigatory consideration of youth be viewed as all but extinguished"

45You have been in adult prison on remand from the date of your arrest.  Your behaviour in adult gaol has been good and bad.  You have been in management whilst on remand.  Nevertheless, I have had you assessed for Youth Justice Centre Order.  I requested a long-form report from Youth Justice.  You have remained in adult prison awaiting sentence.  The total time in adult prison is 310 days pre-sentence detention not including this day.

46I have considered the report dated 2 October 2018, which was prepared by Gene Bell and Robert Ross from Youth Justice.  The report notes that you have been involved in four incidents of threats and assaults to staff whilst on remand in adult prison.  You have placed in isolation and management strategies on occasions.  The report states:

"Given the information that is currently available in regards to Mr Akot's personal history, I do not believe that his prospects of rehabilitation will be improved or enhanced by his placement in youth justice centre.  It is more likely that his challenging behaviours and presentation will adversely impact upon more impressionable and immature young men already serving a sentence in the youth justice system. 

The writer has read all the materials supplied by the court and has consulted with the relevant authorities in the youth justice system in regard to Mr Aree Akot's suitability to a Youth Justice Centre Order.  It is the view of the Department of Justice and regulation (Youth Justice) that Mr Aree Akot does not adequately meet all the criteria stipulated in the Act and presents a demonstrated and unacceptable threat to the good order, security and functioning of a youth justice centre.  Mr Akot is therefore considered to be a non-suitable candidate for Youth Justice Centre Order".

47Given the conclusion of this report and my assessment of your lack of insight into your offending, a Youth Justice Centre Order is not appropriate.  I have also had regard to an affidavit of Brendan Money dated 3 October 2018, that was Exhibit “D” on the plea.  Mr Money is Assisting Commissioner for Sentence Management Division of Corrections Victoria.  In the affidavit a number of misbehaviours and transgressions by you are set out during the course of your time in adult prison. I accept what Mr McQuillan says about some of those matters being trivial.  Nevertheless, there are serious matters set out concerning assaults on staff and other threatening behaviours by you whilst you are in prison.  These matters indicate that you are not suitable for the imposition of detention in a Youth Justice Centre.

48Some of the relevant factors in assessing the seriousness of the criminality in this case are:

(1), you planned this assault on the victim;

(2), you went to the victim's home to seek him out and waited for him to return home;

(3), you had a weapon of a hammer with you;

(4), you attacked the victim with an unknown accomplice;

(5), you continued your assault on your victim until witness bystanders pleaded with you to stop;

(6), you have stated the intention was to cripple your victim, put him in a wheelchair as you said to the police;

(7), the level of the actual injuries to the victim was extremely serious;

(8), you left your victim for dead on the driveway of his home;

(9), you have a prior court appearance for violence offender and;

(10), your offending was driven by revenge.

49On your report to Dr Carroll, you have little insight into your offending.  This is consistent with your answers to the police in the record of interview where you plainly tell police you wanted to put your victim in a wheelchair.

50In more recent times you have had a letter penned by a fellow prisoner expressing your remorse, which is Exhibit “5”.  I accept that you are sorry that you have found yourself in gaol for this night of violence but do not accept you have the insight into the effect of your attack on your victim and consequently you do not demonstrate genuine remorse. 

51I assess your prospects of rehabilitation as guarded.  You show no victim empathy or understanding about your offending.

52The principles of general and specific deterrence, justice punishment and denunciation of your criminal behaviour call for a stern term of incarceration as the appropriate sentence in this case. 

53Would you stand please? 

54On Charge 1 you are convicted and sentenced to serve three years and nine months' imprisonment. 

55On the related Charges, 11 and 12, which are the bail charges, you are convicted and sentenced to one month imprisonment on each of those charges.  I order that the one month of the imprisonment on Charge 11 be served cumulatively on the sentence in Charge 1 on the indictment.

56That means there is a total effective sentence of three years and ten months' imprisonment.  I fix a non-parole period of two years and six months and I declare that you have served 310 days pre-sentence detention. 

57Pursuant to s.6AAA of the Sentencing Act, but for your plea of guilty, I would have sentenced you to five years' imprisonment with three and half years non-parole period and there is a disposal order which I have signed.

58MR McQUILLAN:  As Your Honour pleases.

59MS BURNETT:  As Your Honour pleases.

60HIS HONOUR:  Thanks.  If you could remove the prisoner.  Thanks counsel for your assistance in this case.  Yes.

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