Director of Public Prosecutions v Bol
[2024] VCC 515
•23 April 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR-22-01869
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MABOR BOL |
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JUDGE: | HER HONOUR JUDGE BLAIR | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24 January & 6 February 2024 | |
DATE OF SENTENCE: | 23 April 2024 | |
CASE MAY BE CITED AS: | DPP v Bol | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 515 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW - Sentence
Catchwords: Plea of guilty – Intentionally cause serious injury – unlicensed driving - Category 2 offence – victim sustained traumatic brain injury – refugee background – Complex PTSD – s5(2H) exception established - Delay – Risk of deportation – Verdins – Bugmy – good prospects of rehabilitation – remorse – limited prior history
Legislation Cited: S5, 5(2H)(2)(c)(i), 10A Sentencing Act 1991 (Vic)
Cases Cited:Nash v The Queen (2013) 40 VR 134 - Bugmy v The Queen (2013) 249 CLR 571 - R v Verdins (2007) 16 VR 269 - Dabaja v The King [2023] VSCA 209
Sentence: 4 years and 2 months’ imprisonment, NPP of 2 years and 6 months.
s6AAA – 7 years’ imprisonment, NPP of 5 years
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr S. Tan | Office of Public Prosecutions |
| For the Accused | Mr A. Cameron | Angus Cameron Lawyers |
HER HONOUR:
1Mabor Bol, you have pleaded guilty on indictment M12678467.1 to one charge of intentionally causing serious injury. You have also consented to this court dealing with a summary related offence and have pleaded guilty to one charge of unlicensed driving.
Circumstances of offending
2The factual basis of your offending is set out in the Amended Summary of Prosecution Opening dated 18 January 2024. This document was tendered at your plea hearing and marked Exhibit A.
3Both you and the victim, Charles Afadier, were born in Sudan and later moved to Australia. You have known the victim’s family for approximately 20 years, from when you lived in Sudan.
4On 30 November 2021, you and the victim exchanged text messages. The victim told you to never call him or visit his house again. During your messages with the victim you said, 'stop talking too much and let’s meet', 'so u can show me how bad you can be' and 'now lets meet up'.
5On the night of 2 December 2021, the victim was at his home at Moffat Street, St Albans and was socialising with a friend who left around 10 pm. At approximately 12.09 am on 3 December 2021, the victim was riding his bicycle along Disraeli Street, St Albans. As the victim approached the intersection of Garfield Street and Main Road West in St Albans, a grey Toyota Aurion registration ITV6LZ pulled up close to the intersection. Records show that you acquired this car in May 2021. You exited the vehicle from the driver side door with a baseball bat in your left hand. (SRO Charge 2 - Unlicensed driving)
6Both you and the victim argued loudly in the middle of the road and were heard by people in neighbouring houses. The confrontation escalated and you swung the baseball bat at the victim but did not hit him. The victim rushed towards you and as you moved backwards you again swung the bat at the victim, this time making contact.
7The victim fell over and knocked you to the ground at the same time. You pushed the victim off and stood over him. The victim was barely moving and was in and out of consciousness. While standing over the victim you struck him five times with the baseball bat. You raised the bat over your head and struck the victim with a downward motion as he lay on the ground. The victim remained on the ground and was unable defend himself from the blows.
8After the fifth strike, you paused for approximately four seconds. You then struck the victim a final time on the head. Following this blow, the victim was completely motionless on the road. You walked back to your car and as you did, you yelled 'die motherfucker' before driving away from the scene. (SRO Charge 2 – unlicensed driving cont.)
9About two minutes later at 12.14 am you returned to the scene. You exited your vehicle and approached the victim who was still motionless on the road. You dragged the victim off the road and propped him up against the garage door of 40 Garfield Street. You attempted to shake the victim awake and poured a liquid substance over his head in an attempt to wake him. The victim did not respond. You drove away from the scene. (SRO Charge 2 – unlicensed driving cont.)
10At approximately 12.23 am, police arrived at the scene and found the victim still unresponsive and slumped against the garage of 40 Garfield Street, St Albans. Due to the seriousness of the victim’s injuries, an ambulance was requested and the victim was placed in the recovery position.
11At approximately 12.40 am, Mobile Intensive Care Ambulance (MICA) paramedics arrived and assisted in intubating the victim who was then transported to the Royal Melbourne Hospital in a critical condition.
12The offending and surrounding events were captured on CCTV footage.
13Following the assault, you took steps to conceal your movements. At the time of the assault you were using a dark green Apple iPhone with a phone number registered in your name with the Optus Corporation. By late afternoon on
3 December 2021, approximately 12 hours and 47 minutes after the assault, this number ceased being used in association with that phone.14Between 3 and 4 December you swapped the grey Toyota with another person called Dean Lakis. On 4 December, Lakis sent you a message asking to swap the cars back and you responded the next day saying you had been trying to lay low.
15On 8 December, you attended Brimbank Shopping Centre in a red Toyota Camry Victorian registration 1BV5IW. This Toyota was identified as a hire vehicle obtained using false details. On 28 December, the informant observed you driving this vehicle. (SRO Charge 2 – unlicensed driving cont.)
16At approximately 12.13 pm on 28 December a search warrant was executed at your address. You were located and arrested at the rear of the property after you had attempted to flee through the rear garage door. The police located two phones that belonged to you – a dark green iPhone and a white iPhone. Also seized were the car keys belonging to the grey Toyota and the red Toyota rental car. You denied owning the car keys.
17Medical examination following the victim’s presentation to the hospital identified: A severe traumatic brain injury as a result of blunt force trauma to the head; Extensive skull fractures with some depressed elements and marked diffuse subarachnoid block and bilateral subdural haemorrhages - This head injury was complicated by the formation of a blood clot that required anti-coagulation. He also sustained a fracture of his right scapula.
18The victim underwent surgery for wound washout, elevation of the depressed skull fracture projecting towards the brain, as well as insertion of an intracranial pressure monitor. The bone flap was replaced and secured with plates and screws.
19Upon discharge from hospital, the victim was suffering from: Moderate to severe cognitive deficits; Moderate to severe difficulties across attention, basic capacity, working memory and processing speed; Executive function difficulties with multi-tasking, planning, reasoning and working with complex visual information; Moderate dysarthria (difficulty speaking due to muscle weakness); Reduced strength and fine motor skills with the left hand; Mild dyspraxia (neurodevelopmental disorder of movement and coordination); Prolonged post-traumatic amnesia; and Seizures (noting these may also be impacted by pre-existing conditions).
20Mr Afadier continues to suffer: Impaired cognition, in particular short term memory, problem solving, attention, executive functioning and the ability to multitask; Mild receptive impairments, particularly with reading comprehension and following instructions; Mild expressive impairments, particularly with word finding, grammar and syntax and tangential speech; Limited vocal tone; Expressive aphasia (difficulty enunciating) and a gravelly voice because of the use of an endotracheal tube; Very limited fine motor control of his left hand; Mobility – such that he requires supervision and the use of a single point stick; Personal care – such that he requires assistance for showering, dressing, grooming, medication, housework, meal preparation, shopping, financial and health management.
Contested facts
21Your counsel disputed that you uttered the words ‘die motherfucker’ as alleged by the prosecution. The prosecutor, Mr Tan, led evidence to support his submission that you uttered these words as you were leaving the scene for the first time. From the CCTV footage and the evidence of a nearby resident Mr Hernandez, it is evident something was said. On my assessment of both the CCTV and the evidence of Mr Hernandez I cannot accept beyond reasonable doubt that you did in fact utter the words ‘die motherfucker’.
22The other issue that was contested on the plea was whether Mr Afadier had a hammer. Your counsel Mr Cameron submitted that you said to Mr MacKinnon that, 'He came straight at me with a hammer. I defended myself, the trauma [from my childhood] came back, you turn into survival mode. I went too far.' Mr Cameron submitted that further evidence supportive of the presence of a hammer could be found in that the victim advanced at you, you backed away despite having possession of the baseball bat, when you first struck at Mr Afadier you could clearly hear a sound consistent with the bat striking a hard object and the victim did not appear to flinch upon this first strike.
23Mr Tan on behalf of the prosecution submitted that there was no hammer found at the scene, a hammer cannot be seen on the CCTV footage and there was nothing at the scene to suggest a hammer was present.
24I accept the submissions of Mr Tan and I am unable to find that the victim had a hammer. However, in my view it is clear that you perceived that the victim had some type of weapon based upon the factors put forward by your counsel. Although this might go some way to explain the first part of the confrontation with the victim, it does not explain the five to six blows that followed once the victim was on the ground.
Victim impact
1Mr Afadier provided a Victim Impact Statement dated 22 January 2024. He wrote that since the offending he has experienced PTSD, depression and ‘serious pain’. He felt frustration at the loss of his independence and his physical and mental limitations after the offending. He wrote that he ‘can’t walk normal, talk normal, think normal’ or ‘open a simple door’ amongst numerous other limitations.
2Prior to the offending, Mr Afadier was employed and working towards Honours in philosophy at La Trobe University after completing Bachelor degrees majoring in philosophy and mathematics. As at the time of the plea hearing on 24 January, he was unable to work and receives the Disability Support Pension and NDIS funding. In his statement, Mr Afadier said he was unable to study or to assist his family in Sudan because he cannot work.
3A number of medical documents were provided which confirm the extent of
Mr Afadier’s brain injury and the support he has required. I have already outlined these impacts in some detail. Further medical material provided from January 2024 indicates that Mr Afadier continues to experience serious physical and mental health repercussions which are linked to the offending and subsequent court proceedings.4An assessment of the effects of the offending on Mr Afadier’s physical and mental health is somewhat complicated by the possible presence of a prior traumatic brain injury and the psychological effects of other traumas he has experienced. Notwithstanding any impact of these prior conditions, it is clear that the impact of your offending on Mr Afadier has been profound and life changing and will continue to affect the rest of his life.
Nature and gravity of the offending
5The charge of causing serious injury intentionally is an inherently serious offence. Not only is it punishable by a maximum term of imprisonment of 20 years, but Parliament has designated it as a Category 2 offence. Section 5(2H) of the Sentencing Act provides that the court must impose a custodial sentence (other than a term of imprisonment in combination with a Community Correction Order), unless at least one of the circumstances set out in sub-s(a) to (e) can be established.[1]
[1] Ibid s5(2H).
6President Maxwell in the Court of Appeal case of Nash v The Queen[2] set out a number of considerations which may guide an assessment as to the gravity of an instance of this offence. These include:
(a) The offender’s proven intent: whether to cause serious injury, really serious injury, or the maximum possible injury;
(b) The seriousness of the injury caused (both the immediate and the long-term consequences for the victim);
(c) How vulnerable the victim was;
(d) Whether a weapon was used;
(e) Duration of the attack on the victim; and
(f) Whether the offender acted alone or in company
[2] Nash v The Queen (2013) 40 VR 134, [10].
7Though short in duration, your attack on the victim was brutal and clearly designed to incapacitate him and inflict significant injury. You used a weapon, being the baseball bat, and in large part the blows struck the victim’s head, an area of the body integral to life. The victim was struck repeatedly, with the blows being inflicted by raising the bat above your head, allowing you to strike with more force.
8The victim was left lying in the middle of the road for a period of time where he was at risk of further harm inadvertently caused by other road users. You did return shortly after to move him off the road and made attempts to rouse him. Ultimately he was left alone, unresponsive and without medical treatment where he may have remained for an extended period had neighbours not been alerted to your confrontation and called emergency services.
9The resulting injury to the victim has had significant, immediate and long term consequences on his life. As outlined in the summary of the prosecution opening, the victim had to be intubated at the scene by specialist paramedics and required emergency neurosurgery. He was diagnosed with a traumatic brain injury and spent several weeks on life support followed by a further period of time in hospital for rehabilitation.
10As a result of your offending, the victim has been left with a permanent brain injury that will likely impact him for the rest of his life, including his ability to work and go about his life independently.
11As evidence of a degree of preplanning, the prosecution referred to text messages between you and the victim which were exchanged several days prior to the offending. In these messages, the victim tells you to stay away however subsequently there is some degree of mutual taunting back and forth about resolving the dispute face to face. In my view, these messages do not evidence a concrete intention to meet up and have a violent confrontation, and are more correctly described as macho posturing.
12These messages do however, place the confrontation that eventuates within the context of existing ill-feeling between you and the victim. The rapid escalation of your interaction on the street to a heated and aggressive argument is reflective of this fact. This is what led you to use the baseball bat defensively in the first instance, a fact conceded by the prosecution. Whilst it does not justify your actions, I take the general context leading up to the confrontation into account when assessing the nature and gravity of your offending.
13No real explanation has been given as to why you had the bat in your vehicle or why you had it with you when you approached the victim. Based on the evidence available, including the text messages, I am unable to conclude that you formed an intention to confront the victim with the bat at some earlier time, other than the point at which you approached him on the street.
14Taking into account the events surrounding the offending, the offending itself and the injury to the victim, I consider this to be a serious example of causing serious injury intentionally.
15I will discuss your culpability in more detail shortly when I explore your counsel’s submissions as to the application of special reasons, Verdins and Bugmy.
Personal circumstances
16You are currently 31 years of age and you were 28 at the time of the offending.
17You were born in South Sudan and your early childhood years were spent amid the horrors of civil war. You witnessed numerous instances of the indiscriminate killing of civilians, including your own father when you were age 5. You recall frequently having to flee and seek protection in underground shelters when you heard planes approaching.
18At age nine, you fled on foot with your mother and six siblings to Uganda, eventually settling in a UN refugee camp in Kenya where you remained for about four years. Though you describe this camp as an improvement on your previous living conditions, you continued to grow up in a state of uncertainty and scarcity.
19When you were 14 or 15 you moved to Australia with your mother and siblings, first living in emergency housing before settling in St Albans.
20Your early education was disrupted by the chaos of your childhood, however you received some formal education in the refugee camp in Kenya including English language classes. When you came to Australia you continued your education and completed school until Year 11 at Bayside College. You enjoyed attending school and report good relationships with your peers and teachers. Following your passion for music, you went on to complete a Certificate II in audio engineering.
21You later moved to Perth where you worked with your cousins in a warehousing job. Whilst living in Western Australia you also volunteered with Athletics Western Australia and made significant contributions to their Culturally and Linguistically Diverse (CALD) and indigenous programme. Subsequently, you worked in Queensland for a year in a meat factory and lived with a friend. You also continued to foster your musical skills by performing as a DJ at weddings, parties and community events.
22You returned to Melbourne around the beginning of the COVID-19 pandemic and as COVID-related shutdowns commenced. Around this time of general upheaval, you experienced personal losses which affected you significantly. During 2020, an uncle with whom you were very close passed away in another state. In December of that year, your best friend suddenly collapsed and passed away whilst you were performing as a DJ at a community event that you had organised together. He was a few years older than you and had been a positive role model in your life.
23In the context of these losses, you began drinking and spending less time with your family and positive social connections. Instead you associated with social circles where drug use was commonplace. With these new associates you began to smoke ice regularly in social contexts which developed into an expensive habit. You report using up to several grams each week in addition to drinking alcohol.
24Besides 2021, the year of the offending, you do not report having any issues with drugs and alcohol. You have not received any prior mental health treatment as you were afraid to discuss the traumatic events of your past. I will return in more detail to your psychological history shortly.
25The severity of your current offending is a significant deviation from your otherwise relatively limited and minor criminal history. In 2017 you were fined with conviction for several driving related offences, including a relevant prior for unlicensed driving, and failure to answer bail. You have a relevant prior in 2020 for assault with a weapon for which you received an adjourned undertaking without conviction. The context of this prior violent offence appears to be relatively different from the present offending and involved a dispute with your sister.
26During the lengthy period of time you have spent on remand for these offences, you have kept occupied by working as a laundry billet, exercising and completing several courses and certificates. These certificates have been provided to the court and relate to various topics including employment pathways, relationships, alcohol and drug use and general life skills. Your character references also indicate you have been maintaining communication with your positive relationships in the community.
27Letters of support were provided by your partner, Ayen Bior; your mother, Ayor Agok; Kot Monoah, a solicitor and former leader within the South Sudanese community; and leaders of community programs, Lindsay Bunn and John Bech.
28All of these references affirmed that this offending did not accord with the considerate and hard working person they have known you to be over many years. Each described you as a person with not only an excellent work ethic as an employee and in pursuit of your passions, but someone who gives up significant amounts of time and effort to support their family and the community.
29Your mother confirmed the horrors you experienced as a young child growing up around war and the challenges she faced moving to a foreign country as a single parent with seven children. She noted that you are related to the victim according to South Sudanese tradition and so what has occurred has weighed more heavily upon her as she considered you both to be her children.
30Lindsay Bunn coordinates the CALD and indigenous program for Athletics Western Australia and has known you for 10 years. She spoke of your exemplary commitment to that program. She described you as being ‘instrumental’ to its success which has resulted in numerous records and national championship gold medals since its inception. She said you always presented as a sensitive yet authoritative figure for the younger boys in the program. She noted this in the context of how you were forced to mature from a young age and take on responsibility in the home by helping your mother and siblings.
Section 5(2H) of the Sentencing Act
31Your counsel, Mr Cameron argued that a special reason applies in your case.[3] To establish special reasons within the meaning of s5(2H)(c)(i) requires that I find on the balance of probabilities that: at the time of the commission of the offence you had impaired mental functioning; the impaired mental functioning was causally linked to the commission of the offence; the impaired mental functioning substantially and materially reduces your culpability.
[3]As set out in s 10A(2)(c)(i) the correct section for category 2 offending which is in identical terms is s 5(2H)(c)(i).
32Impaired mental functioning for the purposes of s5(2H)(c)(i) has the same meaning as in s10A and encompasses a range of conditions set out in s10A(1), including mental illness within the meaning of the Mental Health and Wellbeing Act, being a medical condition characterised by a significant disturbance of thought, mood, perception or memory.
33Mr Cameron on your behalf relied on the opinion of forensic psychologist,
Mr Ian MacKinnon, who assessed you from custody and produced a report dated 21 August 2023. In that report, Mr MacKinnon opined that Complex Post-Traumatic Stress Disorder (CPTSD) and Substance Abuse Disorder were contributing factors to your offending.34
Your counsel called Mr MacKinnon to give evidence at your plea hearing on
24 January 2024. Mr MacKinnon gave evidence that CPTSD is a form of PTSD arising from more than one event. In your case, your experiences of violence and war in Sudan led to an underlying perception of the world in the terms of ‘victim’ and ‘victimiser’. It also made you vulnerable to reacting aggressively and disproportionately to perceived threats. This vulnerability had been previously well managed, however in the lead up to the offending you had experienced a compromised mental state for a protracted period. This mental state was influenced by the deaths of people close to you, shutdowns due to the pandemic and habitual interaction with people involved in substance abuse and criminal behaviour. Mr MacKinnon agreed that your substance use was likely in part a form of self-medication for your poor mental state.
35Mr MacKinnon's opinion was that your CPTSD predominately drove your reaction to the perceived threat posed by the victim and even after he was wounded on the ground, you were unable to immediately recognise that any threat had passed. He said this conclusion was influenced by your assertion that when the victim made advances towards you, your childhood experiences came back to you and you went into ‘survival mode’ to defend yourself. This heightened state did eventually subside and in his view may partially explain why you returned to the scene to provide some assistance to the victim.
36Prosecution counsel Mr Tan highlighted that Mr MacKinnon’s report noted that Substance Use Disorder and involvement with a criminal milieu also influenced the offending. Mr MacKinnon said that he could not quantify the impact of each of these factors though confirmed his opinion that the main contributing factor was CPTSD. Notwithstanding the lack of evidence that you were intoxicated at the time, he agreed that frequent drug and alcohol use would have affected your mental state and functioning generally and likely made you more susceptible to being overborne by the effects of CPTSD. When asked about the impact of the baseball bat on his assessment, he said he did not know why you had it but at that time there was ill feeling between you and the victim and at least on a subconscious level you perceived him as a threat. He agreed that your claim that the victim was armed with a hammer influenced how he interpreted your conduct.
37Mr Tan, submitted that when looking at Mr MacKinnon’s oral evidence and his report, his opinion was ambivalent about the contribution of CPTSD compared to other factors such as substance use and involvement in a criminal milieu. Mr Tan highlighted that prior to the offending you had lived in Australia for about 12 years without significant issue until you began abusing drugs and alcohol and associating with negative peers. The trigger for these negative changes seems to have been the personal losses of 2020, not your childhood trauma. All of this, the prosecution suggested, tended towards the conclusion that criminogenic peers and substance use were the main contributors to the offending and therefore the special reasons category could not be made out.
38Defence conceded that it was difficult to completely disentangle CPTSD from other factors however noted that Mr MacKinnon was clear in his opinion in oral evidence that CPTSD was the most significant factor.
39There is little additional guidance as to what is required to satisfy special reasons under this category. It has been held that the test is set at a higher threshold than Verdins and that Parliament’s intention is that the s5(2H) categories are challenging hurdles to overcome.
40Based on Mr MacKinnon’s report and his evidence in court, I am satisfied to the requisite standard that at the time of the offending you had impaired mental functioning being the mental illness of Complex Post-Traumatic Stress Disorder. Evidently you were using drugs around the time of the offending, however importantly, there is no suggestion that you were intoxicated at the time of the offending nor that your CPTSD arises substantially from self-induced intoxication and therefore consideration of your mental impairment is not excluded on that basis.[4]
[4] S 5(2HA) Sentencing Act 1991, see also Dabaja v The King [2023] VSCA 209.
41I also accept the opinion of Mr MacKinnon that your CPTSD was causally linked to the offending in that it made you more susceptible to reacting aggressively and out of proportion when confronted with a perceived threat. This effect is reflected in what you told Mr MacKinnon about the offending and is somewhat supported in the CCTV footage and what is accepted in the prosecution opening. Notwithstanding your possession of the bat, you clearly begin to retreat from the victim who is advancing towards you and this seems to be what prompts your initial use of the bat. In my view it is significant that this immediately proceeds the attack on the victim for which you are to be sentenced.
42I accept Mr MacKinnon’s opinion that CPTSD was the most significant factor in your offending. Whilst drug use and criminal milieu also seem to have had an impact, in my view their impact is not so significant so as to displace CPTSD from substantially and materially reducing your culpability.
43In my view, the relationship between your drug use, criminal involvement and childhood trauma does not diminish the significance of CPTSD to your offending. It was the opinion of Mr MacKinnon that your CPTSD was compounded by the deaths of people close to you in 2020 which appears to have in large part prompted your drug use and criminal associations. Another notable change in this time period was your capacity to manage CPTSD symptoms. Mr MacKinnon considered that you have generally managed symptoms in the past without further assistance by staying occupied, however your ability to do this had been severely compromised at the time of the offending due to the pandemic.
44Given the particular circumstances of your case and the evidence of Mr MacKinnon that I have just detailed, I am satisfied on the balance of probabilities that at the time of the offending you had impaired mental functioning which was causally linked to the commission of the offence that operated to substantially and materially reduce your moral culpability. To avoid doubt I have also found that in your circumstances you have impaired mental functioning within the meaning of s10A of the Sentencing Act.
Verdins and Bugmy
45Having made such a finding it follows that I am satisfied that the lesser test involved in the application of Verdins is also met therefore enlivening the principles of Verdins in your case.
46Your counsel also submitted that the evidence of Mr MacKinnon enlivened the principles of Bugmy in your case.
47An examination of your personal history reveals that you suffered a profoundly traumatic childhood which has resulted in a diagnosis of PTSD and later CPTSD. In my view, Bugmy does have application in your case as:
' An offenders childhood exposure to extreme violence and alcohol abuse may explain the offenders recourse to violence when frustrated such that the offenders moral culpability of the inability to control that impulse may be substantially reduced. However the inability to control the violent response to frustration may increase the importance of protecting the community from the offender.'[5]
[5] Bugmy v The Queen (2013) 249 CLR 571, [44].
48In the circumstances of your case, I am mindful that there is some degree of overlap between the application of Bugmy and Verdins and I have therefore been careful to place appropriate weight on these mitigatory factors. It is my view that your moral culpability ought be reduced and general deterrence should be moderated.
Plea of guilty
49This matter has had a relatively lengthy history and a number of administrative and more substantive hearings have been listed since the filing hearing in December 2021. A Contested Committal was held in October 2022 where several witnesses were cross-examined and the victim gave evidence at a Section 198B hearing in November 2023.
50In these circumstances, your plea could not reasonably be characterised as being entered at an early stage. Nonetheless, the charge you originally faced was very serious, that is intentionally causing serious injury in circumstances of gross violence which is a Category 1 offence.
51Your counsel submitted that you demonstrated an early commitment to resolving the matter with resolution offers made from the middle of 2022. An offer of ‘causing serious injury recklessly’ was made around August 2022 and a change in legal representation occurred. Ultimately, resolution was achieved with you agreeing to plead guilty to the current charge of ‘causing serious injury intentionally’. This occurred subsequent in time to the cross-examination of the victim at a s198B hearing. The prosecution disputes the significance of this hearing and the prior hearings and adjournments in reaching the ultimate resolution. However I accept, particularly in light of the severity of the charge, that there were legitimate reasons to explore evidentiary issues within these hearings and they evidence genuine attempts on your part to resolve the matter.
52Your plea still retains substantial utilitarian value because it has saved the court system the time and resources of running the trial. It has also spared the victim and other witnesses from giving evidence at a trial. Your case entered the system at a time when the courts were still significantly impacted by the pandemic backlog and this adds to the utilitarian value of your plea.
53I therefore propose to give you an appropriate discount for your plea of guilty.
Remorse
54I now turn to the issue of remorse. An assessment of your remorse is complicated by your actions immediately following the offending. Though you did return to the scene to move the victim from the road and try to wake him, you ultimately left him unattended and badly injured. In the days following you also made attempts to avoid detection including by swapping cars and mobile phones.
55You were assessed by Mr MacKinnon sometime after the offending and you told him that you regret everything that has happened and that it will never happen again. Mr MacKinnon’s opinion was that you had deep remorse and genuine regret and this has motivated you to take steps towards reform whilst you have been on remand. He affirmed this opinion on cross-examination at your plea hearing and denied your expressions of regret seemed more related to the impact on your life than the victim’s.
56Each of your character references also stated that you have been reflective on what you have done whilst in custody and you are deeply troubled by the consequences of your actions. Not only on the victim, but your family and your community. Further your plea of guilty also provides some evidence of remorse.
57Albeit not displayed immediately, I consider that there is evidence of your remorse and I take this into account in sentencing you.
Deportation
58Mr Bol, you are not an Australian citizen, and due to the seriousness of your offending, your counsel submitted that there is a realistic prospect that you will be deported following your sentence. Mr Cameron submitted that this prospect has weighed heavily on you during your remand.
59You are now 31 years of age, you left South Sudan when you were about nine years old and came to Australia via Uganda and Kenya when you were a teenager. You and your family fled to escape immense suffering and violence and you have no enduring connections there.
60On the material provided it is evident you are very close with your mother and siblings in Australia, as well as your partner of four years, Ms Bior. Your counsel submitted that the prospect of losing the opportunity to start a family with Ms Bior as you had planned has made your experience in custody especially difficult.
61Owing to your lack of connection to your home country, the disturbing events which prompted you to leave, and your relationships in Australia, I accept that the prospect of deportation has had an additional negative impact on you whilst on remand. This impact is likely to continue during any additional time imposed and I take this into account in sentencing you.
Rehabilitation
62Rehabilitation is an important aim of sentencing and it is recognised that other sentencing aims, such as community protection, can be achieved through supporting the rehabilitation of offenders.
63Several factors indicate that you have very good prospects of rehabilitation. These include: your limited prior criminal history; your history of employment; your involvement in pro-social community and leisure activities; your good relationships with your family and the broader community, as attested to in your character references; your employment, education and commitment to reformation whilst on remand; and your expressions of remorse.
64Mr MacKinnon also gave evidence that in his opinion you lack entrenched antisocial or criminal attitudes. He considered that your involvement with negative peer groups, as well as your alcohol and drug abuse, seems to have been situational. Since your removal from those influences, you have been able to rediscover your moral compass. You told Mr MacKinnon that you were motivated to achieve your goals and return to being a productive member of the community.
Delay
65Over two years have passed since the offending and therefore these matters have been hanging over your head for some time.
66I do not consider that defence-initiated hearings or adjournments, as raised by the prosecution, significantly reduce the relevance of delay in this matter for the reasons I have previously stated. I consider delay to be a mitigatory factor in your case. This matter has been hanging over your head whilst you have been on remand. Additionally during this period of delay you have demonstrated, albeit in a custodial environment, that you have the ability to foster rehabilitation.
COVID-19 related custody conditions
67Further, I accept that having been remanded since 28 December 2021, custody restrictions and quarantines related to the pandemic would have made your remand, particularly in in its early stages, more onerous. Accordingly, I have also taken this into account in sentencing you.
Sentencing principles
68The basic purposes for which a court may impose a sentence are punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community. In your case, each of these sentencing principles are applicable although I have moderated general and specific deterrence because of your decreased culpability both generally and morally, in light of my findings pursuant to s5(2H)(c)(i) and the principles in Verdins and Bugmy. Protection of the community in the circumstances of your case remains a relevant consideration. I consider protection of the community will be best achieved by a sentence of imprisonment involving a period with supports and therapeutic interventions to assist in your transition to the community and your ongoing rehabilitation.
69I take into account the sentencing guidelines referred to in s5 of the Sentencing Act,[6] where relevant to your case. In particular, I have had regard to the sentencing landscape for the offence of intentionally cause serious injury. I have considered the cases referred to by both your counsel and the prosecution. In addition I have considered the sentencing statistics for this offence. The sentencing exercise requires that I balance all relevant factors and make a judgment as to the appropriate sentence in the circumstances of your particular case.
[6] Sentencing Act 1991 (Vic).
70The principles of proportionality and parsimony are also very important considerations. Proportionality requires that I impose a sentence proportionate to the gravity of the offence considered in light of the circumstances, including the maximum statutory penalty, the degree of harm caused to the victim, the method of committing the offence and your culpability. Parsimony requires that my sentence should be no more severe than is necessary to achieve the sentencing purposes.
71Your counsel submitted that I should impose a combination penalty involving imprisonment and a community correction order. Mr Tan for the prosecution submitted the only appropriate sentence was one involving a head sentence and a non-parole period.
72I had you assessed for a community correction order and you have been assessed as suitable. Weighing up all relevant matters in this difficult sentencing task it is my view that your offending is too serious and the injuries and lasting impact on the victim too great, for me to impose a combination sentence. I am mindful of my findings as to your reduced culpability and have taken this into account in terms of the length and structure of the sentence I will now impose.
73Mr Bol,. In relation to the charge of intentionally cause serious injury you are convicted and you are sentenced to be imprisoned for 4 years and 2 months. I order that you serve 2 years and 6 months before being eligible for parole.
74Mr Bol, I declare that you have already served 847 days by way of pre-sentence detention and this is to be deducted from your sentence. Essentially what this means is that you will be able to apply for parole immediately.
75Pursuant to s6AAA but for your plea of guilty the sentence I would have imposed would have been 7 years with a non-parole period of 5 years.
76In relation to the charge of unlicensed driving you are convicted and discharged.
77There is an order for disposal for a number of items. There is also a forfeiture order for the knife and some cash. So I will make those orders. I assume they are not opposed?
78MR CAMERON: That is right, Your Honour.
79HER HONOUR: Yes, all right, thanks Mr Cameron. All right.
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