Director of Public Prosecutions v Ater
[2024] VSC 67
•27 February 2024
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2023 0053
| DIRECTOR OF PUBLIC PROSECUTIONS | Crown |
| v | |
| KWAR ATER | Accused |
---
JUDGE: | Incerti J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 23 February 2024 |
DATE OF SENTENCE: | 27 February 2024 |
CASE MAY BE CITED AS: | DPP v Ater |
MEDIUM NEUTRAL CITATION: | [2024] VSC 67 |
---
CRIMINAL LAW — Sentencing — Affray — Commit indictable offence on bail — Member of group fatally stabbed — Affray leading to death — Parity— Serious incident of affray in a busy place — Participants in both parties armed — Lack of prior convictions — Young offender — Evidence of remorse — Compelling prospects of rehabilitation — Engagement with community — Football coaching — Community Corrections Order without conviction — Parsimony — General and specific deterrence — 313 days on remand — Sentencing Act 1991 (Vic), ss 5(3) and 7(1).
---
APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr N Hutton with Mr S Tan | Directors of Public Prosecutions |
| For the Accused | Mr D Cronin | Papa Hughes Lawyers |
HER HONOUR:
Kwar Ater, you have pleaded guilty to affray and to a related summary offence of committing an indictable offence whilst on bail. The maximum penalties for these offences are five years’ imprisonment and three months’ imprisonment respectively.
The offending
Your offending occurred on 30 October 2022. Close to midnight on 29 October 2022, you picked up brothers Bol and Amor Mangok from their home. You all made your way to Bourke Street in Melbourne, along with another friend, Nobel Ghebremichael. The car was parked in Bourke Street and you and your friends made your way to the Daha Nightclub in Queen Street.
At approximately 5:30am on 30 October 2022, a person named Daniel Abdelrahman and two sisters, Rihab and Ryan Adam, left the Daha Nightclub. They walked north along Queen Street and turned right into Bourke Street to wait for an Uber. They were standing close to the corner of Hardware Lane and Bourke Street when Mr Abdelrahman was attacked by three people, Jacob Kuol, Timothy Leek and Kose Kose. The attack was unprovoked and Mr Abdelrahman was taken to the ground, threatened with a knife, and repeatedly punched and kicked by the three assailants. Some of the assault is captured by CCTV cameras and by Ryan Adam on her mobile phone.[1]
[1]Exhibit P1 on Sentence Indication.
Mr Abdelrahman escaped down Hardware Lane before returning to Bourke Street where he was further assaulted by Mr Leek.
While this was occurring, an associate of Mr Abdelrahman ran to where you were located with Bol Mangok, Amor Mangok, and Mr Ghebremichael in front of the Daha Nightclub. It seems your group was told of the assault on Mr Abdelrahman.
Your group made its way up Queen Street and turned right into Bourke Street and headed towards the scene of the assault on Mr Abdelrahman. Bol Mangok was armed with a knife. It is not clear whether you knew if Bol Mangok had a knife prior to entering the fight, however it was conceded to a covert officer that you were aware at some point during the fight that people in both groups were armed.[2] On arrival at the scene, Bol Mangok pulled Mr Leek from Mr Abdelrahman and stabbed Mr Leek to the side. Mr Leek dropped to the ground but regained his feet, at which point it was agreed that you punched Mr Leek to the head. Meanwhile, Bol Mangok exchanged blows with Mr Kose. Mr Kuol ran past and was stabbed by Bol Mangok to the upper right thigh. You ran to assist Bol Mangok. At this time, Mr Kose was throwing forceful punches towards Bol Mangok. You grabbed Mr Kose’s right arm and the neckline of his shirt in what appeared to be an attempt to stop him throwing punches and punched him to the head. Mr Kose was pulled forward by the shirt and landed on the ground. No blood is visible on his shirt at this stage. It is agreed for the purpose of your sentencing that at or about the time you grabbed and pulled Mr Kose, Bol Mangok stabbed Mr Kose twice in the chest and three times in the back.
[2]Defence submissions for Sentence Indication dated 15 February 2024, [7].
Once Mr Kose was on the ground, you stepped right away from the fighting and did not re-enter at any stage.
Amor Mangok and Mr Ghebremichael kicked Mr Kose two to three times each to the upper body after he had been stabbed and was on the ground.
A knife is visible whilst Mr Kose was on the ground, but it is clear from the CCTV footage that you did not use any knife and were not armed at any stage.
Mr Kose was able to get up from the ground and you and your associates fled back up Bourke Street.
The altercation finally ended when police attended.
Paramedics attended the scene and Mr Kose was taken to the Royal Melbourne Hospital where he tragically died a short time later. Mr Kose was only 18 years old. Mr Leek was taken to the Royal Melbourne Hospital and underwent surgery and remained in hospital until 6 November 2022. Later in the day on 30 October 2022, Mr Kuol presented himself at the Dandenong Hospital and was treated for a stab wound to his left thigh.
Rather than go to the car that was parked in Bourke Street and close by the scene of the fight, you, Bol and Amor Mangok and Mr Ghebremichael walked away from the scene and remained in the lanes and back streets in an apparent attempt to avoid police.
Co-accused
Bol Mangok was charged with the murder of Mr Kose and faces a trial in this Court this year.
Amor Mangok and Mr Ghebremichael were charged with affray and granted bail. They pleaded guilty to the charge and were dealt with in the Magistrates’ Court. Relevantly, neither had any prior convictions,[3] they were unaware of the presence of knives, they attended in response to the assault upon Mr Abdelrahman and they both continued to kick Mr Kose while he was on the ground.
[3]DPP v Kuol and Leek [2023] VSC 751, [18].
They each received an 18-month Community Correction Order (‘CCO’) with unpaid work hours and other conditions. They did not spend any time on remand in relation to the charge.
Mr Leek and Mr Kuol pleaded guilty to the two offences: one charge of affray and one charge of intentionally causing injury to Mr Abdelrahman. Mr Leek also pleaded guilty to a summary offence of possessing a controlled weapon without lawful excuse.
The circumstances of their offending and sentencing considerations are set out in Fox J’s sentencing ruling.[4] I will not set out the circumstances but rely on her Honour’s ruling for the purpose of considering parity in your sentencing.
[4]DPP v Kuol and Leek [2023] VSC 751.
Mr Leek received a sentence of 16 months’ imprisonment and an 18 month CCO. Mr Kuol received a sentence of 395 days of pre-sentence detention and a 12 month CCO.
Mr Kose
Mr Kose was born on 27 April 2004. In October 2004 he came to Australia as a baby with his parents and siblings. At the time of his death, he was working in a warehouse and living in Cranbourne East with his family.[5]
[5]Exhibit P1 on Plea Hearing, [30].
Victim impact statements
Victim impact statements were written by Mr Kose’s mother, father, and sister. The statements speak to the pain the family has suffered following Mr Kose’s death and I have taken the moving statements of the deceased’s family into account. At the same time, I am mindful that you are not criminally or directly responsible for Mr Kose’s death. Instead, the death occurred during an affray of which you were a part.
Mr Kose’s mother, Ms Viala Shalong prepared two statements and read them before the Court. Ms Shalong had a kind and loving relationship with her son, filled with games and laughter. She spoke of her son’s death leaving a hole in her heart and she misses her son more every day. Ms Shalong also relayed the impact of the death on her younger children: Mr Kose’s brother Lado has struggled with the loss and creates music to attempt to deal with the events; and Mr Kose’s younger sister Vivianna has become disengaged with school and angry with the tragedy in their family.
Mr Kose’s father Mr Franco Kose has felt lost since the death of his son, his friend, and his family’s “right hand”. Soccer was an important part of their relationship, and Mr Franco Kose misses coaching his son. Since his son’s death, Mr Franco Kose has attempted to coach other children, but he has found the experience brings back too many memories and is too difficult. I am struck that sport and coaching is a big part of your life and hopefully an arena for your rehabilitation. I trust that in pursuing your own sporting goals and coaching endeavours, you will carry with you an awareness that street violence has robbed a father and son of that same passion.
There is a six year age gap between Mr Kose and his older sister, Ms Jovana Kose, but she recalls convincing people they were twins. Now, she cannot stare at herself for too long in the mirror without seeing him. She misses the comedian of the family and she had even planned for him to walk her down the aisle.
It is evident that Mr Kose was part of a tight-knit family that continues to grieve his loss.
Personal circumstances
You were born on 18 May 1999. You were 23 years old at the time of the offending. You were born in Sudan during the period of the second civil war. Your family were able to leave Sudan, firstly moving to Egypt where they lived with family. You were four years old when your family migrated to Australia. You are an Australian citizen.
Shortly after your family arrived in Australia, your father travelled to the United States to find employment. Whilst overseas, he met another woman who he eventually married and did not return to Australia. You are in regular contact with your father despite that history.
You and your siblings were raised by your mother in the western suburbs of Melbourne and remain a close family unit. You have five siblings, four brothers and one sister. You are the youngest in your family.
You attended primary and high school in Victoria and completed Year 12 at Point Cook Secondary College.
After you completed high school, you enrolled in a bachelor’s degree in Sports Science and International Business at RMIT. You did not complete the degree and left studying to obtain employment. You have worked in various jobs including warehousing, welding, and retail. Part of the reason you left studying to work full time was to help support your mother, who was caring for her grandchildren.
You currently reside with your mother in her home in Seabrook. As well as your mother, two of your siblings and two nieces and nephew also live in the house where you reside. I have been told that you are a close and supportive family.
I am informed that you are a talented Australian Rules footballer and that you play football for Point Cook Central Sporting Club and have done so since you were 13 years old. You continue to play for that club and hope to be drafted into the Victorian Football League. You are currently undertaking pre-season training that takes place three nights per week between 5:30 and 9:30.
You were recently employed in warehousing but have recently set up your own marketing company. The services offered by your company include building websites, branding, and marketing. You are working every day on your business. I am informed that the business is already making some money and that you are earning approximately $850 per week.
You pay rent to your mother and pay the internet bill for the household.
Since being released on bail, you have had no further involvement with the police and have no outstanding charges.
Criminal history
You admit your criminal history. Your history consists of matters determined in the adult and Children’s Court jurisdictions. No conviction has been recorded and the more serious offending was dealt with in the Children’s Court when you were 17 years old. You admit that at the time of the offending you were on bail for offences of failing a preliminary breath test within three hours and exceed speed limit by less than 35 kilometres per hour. Those offences were committed on 30 October 2022. The matter was finalised on 13 April 2023 at Sunshine Magistrates’ Court where you were fined $400 without conviction.
You spent 313 days on remand prior to being granted bail on 19 September 2023. This was your first time in custody and I am informed that you found this time particularly confronting.
Mitigating factors
Your counsel noted that Verdins[6] had no application and that you did not rely on your early childhood experiences on the basis that they had no impact on you.
[6]R v Verdins & Ors [2007] VSCA 102.
You expressed genuine remorse about the incident. You told Dean Chambers, a senior football coach at your football club, that you felt deep sadness for Mr Kose. Gavin Young, the football club secretary, writes that you demonstrated remorse. I was informed previously that in your record of interview, you expressed that you ‘felt pretty shit’ about what had happened.
You were arrested at your home on 4 November 2022. You cooperated with the police and identified yourself in the CCTV footage.
You were originally charged with murder, affray, intentionally cause serious injury and commit indictable offence on bail. You were held on remand, as I have said, for 313 days. A subsequent indictment filed on 12 September 2023 contained a single charge of affray and a related summary offence connected to committing an offence on bail.
On 13 September 2023, you were granted bail having served 313 days pre-sentence detention. On 7 February 2024, you made an application for a sentencing indication which was heard in this Court on 19 February 2024. On the day of the sentencing indication you pleaded guilty to the charge of affray. I consider you pleaded guilty at an early opportunity and this entitles you to a significant sentencing discount. Your guilty plea has facilitated the course of justice, shows an acceptance of responsibility by you for your crimes and has substantial utilitarian or practical value. It has saved the witnesses giving evidence in a criminal trial. Additionally, your plea was entered at a time when the Court’s listing remained impacted due to the COVID-19 pandemic. Your plea has an additional benefit which must be reflected in the sentence I impose.[7]
[7]Biba v The Queen [2022] VSCA 168, [26], referring to Worboyes v The Queen [2021] MVR 344; [2021] VSCA 169.
The prosecution submits that given your criminal history your prospects of rehabilitation should be assessed as ‘uncertain’. I disagree with the prosecution’s characterisation of your prospects of rehabilitation. Since completing Year 12, you have been gainfully employed. You have recently started your own marketing business and work each day and three nights per week attend football training. You live with your mother and other family members. You are fortunate to have a close and supportive family – this factor will be an important protection for you. It appears that you are a gifted footballer. Fortunately, you are not wasting that talent and I am told that you are committed to your training and your club.
I have read three character references from individuals involved in the Point Cook Central Sporting Club, Dean Alan Chambers, senior football coach; Gavin Young, club secretary; and Roger Hand, club director.
Each referee notes your involvement in the club since 2013 when you were 13 years old. They talk about your involvement now in the junior mentoring program at the club and that parents speak highly of your interactions with their children. The club was aware of the charges you are facing and the club determined that despite the charges it was appropriate for you to rejoin the club and felt you were ready to return.
It is extremely encouraging to see you give back to the club by your involvement with the junior members and your own personal commitment and development. You are described as friendly, respectful, having integrity, kind, having a powerful sense of care and compassion and being a respected member of the club.
You are financially contributing towards your mother’s home which demonstrates accepting some responsibility for your family’s generosity and support.
You have a criminal history, as I have said, most of which occurred when you were young. Having considered the totality of matters, I consider your prospects of rehabilitation are very good. Your involvement in the football club and your family are playing a major role in your rehabilitation and provide you with a safe and protective environment in which you have an opportunity to look out for younger people and be a strong role model for them. I congratulate you on this. I also congratulate the club for accepting you back and their nurturing of you.
Your decision to go to the scene was motivated by your desire to assist an associate. While the parties agreed to the first punch to Mr Leek, I am unable to determine the circumstances from my own viewing of the footage. The punch you inflicted on Mr Kose was in the context of trying to stop Mr Kose from punching and hurting Bol Mangok. The moment Mr Kose was on the ground, you immediately removed yourself from the fighting and did not re-engage.
This can be contrasted to Amor Mangok and Mr Ghebremichael who continued to kick Mr Kose while he was on the ground. In determining the appropriate sentence, proper regard to parity with the sentencing of the other participants in the melee is essential to the exercise of discretion.[8] Nevertheless, this does not mean that you must receive the same sentence as the other offenders, and a difference in circumstances can justify a disparate sentence outcome.
[8]Abdou v The Queen [2015] VSCA 359, [62].
I have had regard to Mr Leek and Mr Kuol’s offending and sentencing and consider their conduct to be far more serious, and as such distinguishable from your conduct. I consider that you stepped away from the fight when Mr Kose reached the ground, and that your participation was in a reactive role to the threat to your friends.
Other matters
This was a serious example of affray. The prosecution submits that your moral culpability is mid-level. The offence was carried out in a busy street in Melbourne and, despite the early hour, the area was crowded.
The incident involved up to seven people. You threw two punches during the incident. The incident lasted approximately four minutes and caused alarm and fear to bystanders. I acknowledge that there was no pre-planning and it seems to me you were trying to help someone who was being attacked.
I acknowledge that you did not have a knife and were not armed. You were not aware of Mr Kose’s injury at the time you left the scene. However, Mr Kose died because of being stabbed during the fight, reflecting the seriousness of the fight and the nature of the affray. Having said that, I consider care must be taken in assessing the seriousness of this affray by reference to the fact that Mr Kose was killed during the offending. You should not be sentenced for more serious offending for which you are not responsible. Care must also be taken in sheeting home to you a level of gravity of the affray as measured by the fact that Mr Kose’s death occurred, in circumstances when it is accepted you did not know he had been stabbed and you are not in any way complicit in the cause of Mr Kose’s death.
I have assessed the gravity of the offending by considering that Mr Kose was killed but only in the limited way in which the law and circumstances set out above allow.[9]
[9]R v Feretzanis [2003] VSCA 8, [18]-[19] (per Ormiston JA; Eames JA agreeing; Callaway JA not deciding); DPP v Russell (2014) 44 VR 471, (per Maxwell P, Weinberg and Santamaria JJA); referred to in R v Casley [2021] VSC 503, [63].
I have had regard to the mitigating factors including your prospects of rehabilitation, your genuine remorse, your young age, your admissions and cooperation with the police, your plea of guilty and the lengthy period you spent on remand which, as I have said, was unlikely to occur but for a charge of murder which was subsequently withdrawn. You spent the 313 days in police cells and at the Melbourne Reception Centre. This was your first experience in prison. I was told that you found this time very confronting. Unfortunately, you cannot reclaim those 313 days of your life.
I accept that this would have been a very onerous, difficult time for you given the length and the nature of incarceration.
Regrettably, you made a poor choice to join a group to go and help a friend in circumstances where a fight was almost inevitable. I note that you did not expect the fight to escalate in the way that it did and that it ‘all happened so quickly’.[10] However, there were other options available to you, such as calling the police, getting help, or not taking matters into your own hands.
[10]Community Correction Order Assessment Outcome Report, 2.
Sentencing purposes
I will address the purposes of sentencing. Section 5(1) of the Sentencing Act 1991 (Vic) (‘Sentencing Act’) provides in short that the only purposes for imposing sentences are: general deterrence, specific deterrence, denunciation, protection of the community, just punishment and rehabilitation.
General deterrence, denunciation and punishment are important sentencing considerations. The community should understand that behaviour such as yours - even if less serious than that of those around you – is denounced by the courts and may result in some circumstances with a term of imprisonment and/or a non-custodial disposition with a conviction. However, the weight afforded to your general deterrence is not as great as it might be for the other co-offenders.
You have a criminal history, albeit mostly in your youth. Any weight given to specific deterrence in this case is offset by your relatively young age, plea of guilty, remorse and prospects of rehabilitation.
I have already spoken about your prospects of rehabilitation. There is a direct interplay between rehabilitation and protection of the community. I consider your risk of re-offending to be very low and I can already see your successful reintegration into society.
Report and suitability for CCO
Following the sentencing indication hearing, and with the concurrence of the parties, I called for a report from Corrections on your suitability for a CCO. The author of the report assessed you a suitable candidate for a CCO and recommended conditions of community work and supervision. You have indicated that there is flexibility in your working arrangements that will allow you to manage your new business and sporting commitments alongside the CCO.
Parsimony
Section 5(3) of the Sentencing Act, relevantly, provides that:
A court must not impose a sentence that is more severe than that which is necessary to achieve the purpose or purposes for which the sentence is imposed.
Similarly, ss 5(4)-(6) set out a similar principle as adapted to the considerations of confinement and the imposition of a CCO. These provisions reflect the common law principle of parsimony. It is a fundamental principle, and as Croucher J said in R v Casley, ‘sometimes forgotten’.[11]
[11][2021] VSC 503, [17].
Conclusion
Your case is complex and unusual in that you have spent 313 days on remand, a time which, as I have already said, you are unlikely to ever have served for the offence you have pleaded guilty to. You are showing signs of being a solid member of the community and your prospects appear hopeful. You have support from family and from your sporting club. Nevertheless, you have pleaded guilty to affray in circumstances where a young person was killed. I have had regard to the sentences of the co-accused in particular Amor Mangok and Mr Ghebremichael. I note that their offending had the distasteful aspect of continuing to kick and hurt Mr Kose when he was on the ground and defenceless.
Bearing in mind the principle of parity and all the evidence, I consider that any sentence involving imprisonment, even as time served, is inappropriate in this case. As such, I consider that a non-custodial disposition is appropriate.
After finding a person guilty of an offence, the Court may order a community correction order with or without recording a conviction.[12] In exercising this discretion, I must have regard to all the circumstances of the case, including the nature of the offence, the character and past history of the offender and the impact of a conviction on the offender’s economic or social well-being and his employment prospects.[13]
[12]Sentencing Act, s 7(1)(e).
[13]Ibid, s 8(1).
An issue in this case is that any conviction recorded may impede your future work with young people and your ability to expand and develop your business. I take note of the additional letter tendered from Roger Hand at the Point Cook Centrals Sporting Club indicating that any difficulty of obtaining a Working With Children check in the future would impact your ability to remain involved with the junior football program.
In circumstances where you have already sustained punishment by virtue of your lengthy time on remand, I consider that I should not impose a sentence with conviction. This unusual outcome given the offence is due to the factors set out but also reflects the lengthy period of imprisonment that you would not have received for this offending and as such you have received punishment beyond what justice requires. The sentence I impose on you for affray is that you will be subject to a 6-month CCO with conditions. Together with the mandatory conditions that I will not read out, I impose the following conditions:
(i) You are to be under the supervision of Community Corrections for the duration of the order; and
(ii) You are to complete thirty-five (35) hours of unpaid work; and
(iii) You are to attend judicial monitoring at 9:30am on 10 April 2024, and thereafter as directed by the Court.
I confirm you have consented to the CCO.
If you breach the Order, by non-compliance or further offending, or both, you will be brought back before me on the breach. Depending on the nature of the breach, you may be resentenced for this offence.
Given your ongoing involvement with the sporting club and the importance of that institution in your rehabilitation, I hope that Community Corrections can support a program in that realm.
On the related summary charge of committing an indictable offence on bail, I order that the charge be dismissed and no conviction recorded, in accordance with s 76 of the Sentencing Act.
Section 6AAA
I am obliged pursuant to s 6AAA of the Sentencing Act to state the sentence I would have imposed if you had not pleaded guilty. Mr Ater, but for your plea of guilty, I would have sentenced you to a CCO of 12 months with a conviction.
2
8
0