Director of Public Prosecutions v Deng
[2022] VSC 790
•15 December 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2021 0032
| DIRECTOR OF PUBLIC PROSECUTIONS | Crown |
| v | |
| MARCO DENG | Accused |
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JUDGE: | FOX J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 14-16 and 20-24 June 2022 (trial), 30 November 2022 (plea) |
DATE OF SENTENCE: | 15 December 2022 |
CASE MAY BE CITED AS: | DPP v Deng |
MEDIUM NEUTRAL CITATION: | [2022] VSC 790 |
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CRIMINAL LAW – Murder – Jury verdict – Plea of guilty to manslaughter – Accused arranged to meet with and confront deceased over a minor grievance – Fight ensued not involving the use of weapons – Fight ended and deceased had retreated – Accused then pursued the deceased armed with a knife – Single stab wound inflicted with mild to moderate force – Accused 22 years old at time of offending – Relevant but very limited criminal history – Accused sentenced between jury verdict and plea in the County Court for unrelated earlier matters – Totality – Standard sentence offence – Sentenced to 19 years’ imprisonment with a non-parole period of 14 years’ imprisonment – Sentencing Act 1991 ss 5B(2)(b) and 11A(4)(b).
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr M Gibson KC | Office of Public Prosecutions |
| For the Accused | Mr D Cronin | Emma Turnbull Lawyers |
HER HONOUR:
Marco Deng, on 24 June 2022, you were found guilty by a jury of the murder of Machar Kot.
Almost exactly two years earlier, on 22 June 2020, you fatally stabbed and killed Machar Kot outside the Oaks on Market Hotel in Melbourne. The incident was captured on CCTV footage. The prosecution case at trial was that you had stabbed Machar Kot intending to cause him really serious injury. You indicated before the jury your willingness to plead guilty to manslaughter. You accepted you had caused Machar Kot’s death by deliberately stabbing him in the upper abdomen. The only issue for the jury was whether the prosecution could prove murderous intent. As reflected by the verdict, they could and they did.
You and Mr Kot were known to each other and, sadly, used to be friends. You were 22 at the time of this incident, and he was 21 years old at the time he was killed. On the evening of Sunday, 21 June 2020, you believed Machar Kot had called you a ‘snitch’, which you considered derogatory. As a result, you were observed by others to be ‘pretty upset’ and ‘mad’. There is no evidence that Machar Kot ever called you a snitch or made any disparaging comments about you. However, as a result of the perceived insult, you wanted to fight Mr Kot. You contacted him and arranged to meet him outside the Oaks on Market Hotel. You and three friends then drove into the Melbourne CBD. It is unclear exactly what led Mr Kot to agree to the meeting, but he met you as arranged. He can be seen on the CCTV footage exiting through the hotel doors with a friend of his, and other friends were outside and nearby.
Within a minute or so of his arrival, the two of you moved around the corner from the hotel and you punched Mr Kot to the head. He quickly struck you back, knocking you to the ground. He then moved away, but you regained your feet and pursued him. A physical altercation ensued, during which you produced a knife, but you did not use it and after about a minute, you dropped or discarded the knife. A friend of yours can be seen picking up the knife on the CCTV footage. A further physical altercation between you and the deceased took place in Market Street. Again, you struck Mr Kot and he responded by physically engaging with you. The altercation finished after several minutes. Neither of you appeared injured by the physical fight up to this point.
Mr Kot and a friend commenced walking back up Market St towards the hotel. You followed some distance behind, carrying the same knife you had been seen with earlier. No-one else had a knife on this night. Mr Kot walked up the steps leading to the front door of the hotel, but was unable to gain access, as the doors would not open. Effectively, he was cornered at the entrance to the hotel. You pursued Mr Kot up the stairs to the landing area, moved around several others who were trying to stand between you and him, and fatally stabbed Mr Kot once in his upper abdomen. After you stabbed Mr Kot, you ran from the scene and drove away from the city with your friends.
Very shortly after you left, Machar Kot collapsed. Dr Beer, forensic pathologist, gave evidence on the trial that the fatal stab wound had entered Mr Kot’s upper abdomen and passed through the bottom of his diaphragm, penetrating approximately one centimetre into the right ventricle of his heart. The estimated depth of the wound was between six and eight centimetres, and in his opinion, the last one-third of the knife probably penetrated the deceased. Dr Beer said the force used to inflict the wound was somewhere in the ‘mild to moderate’ range but not excessive. The stab wound caused internal bleeding and tragically, Mr Kot died later that morning.
Over the course of the next few days, police publicly appealed for information to locate you. On the morning of 25 June, you attended at a medical centre and requested staff call ‘000’, whereupon police attended and you were arrested. You participated in a record of interview. You admitted being at the scene and fighting with Mr Kot, but denied ever having a knife or being present when Mr Kot was stabbed. You denied stabbing Mr Kot.
You did not persist with these denials and the trial was conducted very efficiently on the single element in dispute, being intention. Many witnesses were not required or were ‘read-in’ by agreement. In this way, the length of the trial was substantially shortened and your acceptance of responsibility for the homicide of Machar Kot had a meaningful utilitarian or practical benefit.
Two victim impact statements were tendered on the plea. The statement of Machar’s mother was read aloud by the prosecutor. She has been devastated by the death of her son. His loss has taken a real toll on her mental and physical health. She worries constantly about the safety of her other children, suffers sleeplessness and high blood pressure, and misses Machar constantly. He had just passed his Civil Construction course, and his graduation certificate arrived a few weeks after his death, but he was not there to celebrate his achievement. She is enraged that you took his life and stole his bright future, and tormented by the thought of what he endured in his final moments.
Machar’s sister read her victim impact statement to the Court. She never got to say goodbye to her brother and finds it difficult to put into words how much pain and trauma you have caused both her and her family. She experiences nightmares, anxiety, depression and sudden panic attacks as a result of her brother being murdered. She constantly asks herself, ‘Why Machar?’, and finds it difficult to comprehend why anyone would ever harm her loving and kind brother. She will never forget her brother, and her family live in constant pain because of your crime.
Both victim impact statements made clear the enormous and painful impact your crime has had on the family of Machar Kot.
I turn now to your personal circumstances. You were born on 2 May 1998 during the civil war in Sudan. You were raised by your mother and father, and have one younger brother. Whilst in Sudan, you were exposed to the atrocities of the war and witnessed people being shot and killed. In 2003, your family escaped Sudan and sought refuge in Egypt. Tragically, your mother passed away from a brain tumour while in a refugee camp. You were five years old and struggled to comprehend what had happened to your mother. Your family were also subject to hostility and abuse in Egypt, as refugees from Sudan were unwanted.
You moved to Australia with your father, Lang, and your younger brother, George when you were around five years old. Your father has always been and remains supportive of you. You also have a very good relationship with your younger brother. Your father remarried, and he and your stepmother had a positive relationship, but you did not like your stepmother. There is no suggestion she abused or mistreated you, but you did not get along.
Despite your difficult start in life, you did well after arriving in Australia. You completed Year 12 and were very talented at sport, particularly soccer. After completing school, you commenced an apprenticeship in carpentry, changing to roof tiling after six months as it offered better remuneration. You then disengaged from roof tiling after six months, as you felt it was too much work. You worked at a meat factory briefly, and then in a warehouse until the work became unavailable in September 2019. You have not worked since.
You left home at age 18 after an argument with your stepmother. Apparently, your father and brother joined you, and you all resided with a cousin for a period of time. You then attempted to return home with your father and brother, but were unable to manage the relationship with your stepmother, and left again. For the four years prior to this crime, you had been staying with friends or ‘couch surfing’. There were occasions when you had nowhere to go, and you slept in parks.
Five character references were tendered on your behalf, including one from your younger brother, George. You are very close to your brother, and George wrote that even after you left home, you were always there for him and would constantly check up on his wellbeing. The referees have all known you since a very young age, and consistently describe you as energetic, hardworking, caring and a talented sportsman. All of them noticed a change in you around 2019 when you started associating with the ‘wrong crowd’. You lost your passion for sport and became uncommunicative with your close friends and relatives. You started drinking alcohol frequently to the point of intoxication, smoking cannabis daily, and abusing the prescription medication, Xanax.
In late September 2019, you punched a convenience store owner to the head after she and her husband told you that you were no longer welcome in the store. You were charged with recklessly causing injury, wilful trespass in a public place and committing an indictable offence whilst on bail. You were convicted and received an aggregate fine. In June 2020, you were convicted and fined on charges of shop theft and committing an indictable offence whilst on bail; a third charge of possess cannabis was dealt with by way of a without conviction adjourned undertaking.
In February 2020, you committed further offences in company with others. You were present when your co-offender stole a car by forcing the driver out, and you were later a passenger in that stolen car. The next day, together with two co-offenders, you stole a phone and other items from a passer-by. One of your co-offenders used a knife to threaten the victim. Later, you snatched a phone from a 13-year-old girl. You were on bail at the time of this offending and remanded into custody. You were later granted bail in May 2020. Just six weeks later, you fatally stabbed Machar Kot.
A psychological report, dated 17 October 2022, was tendered on your behalf. Ms Cokorilo, psychologist, assessed you on 17 August 2022. Her report dealt with the charge of murder, together with charges arising from February 2020, namely theft of motor vehicle, armed robbery and theft.
According to Ms Cokorilo, you present with a history of severe early trauma and meet the criteria for post-traumatic stress disorder (PTSD), generalised anxiety disorder, and persistent depressive disorder with manifestations of major depressive disorder. You have never received any psychological intervention or mental health assistance, and your mental health further deteriorated when you were evicted from the family home at age 18. In her opinion, you have a complex profile characterised by hyper-arousal, impulsivity, recklessness, emotional dysregulation and negative affect, and such a profile is associated with an increased risk of aggression and substance abuse. In Ms Cokorilo’s opinion, you present as an immature young man with poor insight into the factors contributing to your poor mental health.
Ms Cokorilo outlined in general terms the impact PTSD may have on individuals, and stated that ‘[t]hese factors are thought to have contributed to Mr Deng’s offending conduct’. She opines that your ‘untreated psychopathology’ is considered a significant factor in your past and current offending. Further, in her opinion, you were affected by alcohol and Xanax at the time of the offending, which impaired your thinking. Such substances and intoxication can heighten the risk of engaging in impulsive and reckless behaviour, as well as impair insight, decision-making and judgment.
Your counsel, relying on the report of Ms Cokorilo, submitted that it ‘may well be’ that you were acting more aggressively on this night because of your untreated PTSD, which heightened your aggression. Your counsel submitted principles 3 and 4 of Verdins[1] are engaged, and both general and specific deterrence should be appropriately moderated.
[1]R v Verdins (2007) 16 VR 269 (‘Verdins’).
The rationale for moderating general deterrence in the case of an offender suffering from a mental disorder is that the offender is not an appropriate medium for making an example to others, whether or not the illness played a part in the commission of the offence.[2] In Verdins, the principle was expressed thus:
Whether general deterrence should be moderated or eliminated as a sentencing consideration depends on the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or the date of sentence or both.[3]
For the principle to have application here, there must be cogent evidence establishing a connection between the impairment of mental functioning and the need for general deterrence. The evidence must show that your PTSD had some realistic connection with the offending, or caused or contributed to the offending, or be causally linked to the offending.[4]
[2]R v Tsiaris [1996] 1 VR 398, 400; see also the discussion in DPP v O’Neill (2015) 47 VR 395 [44]-[58].
[3]Verdins, [32].
[4]DPP v O’Neill (2015) 47 VR 395 [59], [68]-[74].
The evidence of Ms Cokorilo is somewhat unsatisfactory. She dealt with your ‘offending conduct’ in toto and did not specifically address this serious crime. She did not really explain how your ‘untreated psychopathology’ is connected or causally linked to your decision to take a knife and stab Mr Kot at a point where he was retreating and posed no threat. Her evidence was limited to stating that quick temper and aggressive behaviours with little or no provocation are observed in individuals suffering from PTSD, and these factors are ‘thought to have’ contributed to your ‘offending conduct’. In her opinion, your substance abuse has likely played a role in your offending, but your untreated psychopathology is nonetheless a significant factor in your past and current offending. In my view, her evidence goes some way to establishing a connection between your PTSD and your aggressive conduct on this night, but it is tenuous. Additionally, even accepting such a connection is established, the significant role played by your intoxication means any application of principle 3 would be slight. General deterrence remains a significant sentencing purpose.
Your PTSD remains untreated. There is no suggestion in the evidence that due to your PTSD, imprisonment would not deter you from further offending, or you do not have the ability to objectively observe the consequences of your behaviour and make positive changes. I can find no basis for the application of principle 4 of Verdins.
However, your history of childhood trauma, untreated PTSD and mental health issues are all still relevant when imposing sentence. Your exposure to serious violence at a very young age, the loss of your mother when you were just five years old and your consequent PTSD and mental health problems were not of your making, and have no doubt shaped who you have become. Your actions and decisions on this night must be seen in this context, and your difficult background does mitigate the sentence I would otherwise have imposed. Additionally, from around the age of 18, you were homeless and without the everyday support of your family, due to irreconcilable problems between you and your stepmother. It is perhaps sadly unsurprising that you found yourself unemployed, falling in with antisocial peers, abusing alcohol and drugs, and committing offences.
I accept that principle 5 of Verdins has application here. Your untreated PTSD and mental health problems will make custody more onerous and difficult for you than for a person who does not suffer from these afflictions, and I take this into account when imposing sentence.
According to Ms Cokorilo, you regret your offending conduct every day, but you declined any further discussion about remorse, stating that you did ‘not want to say anything else if [your] lawyer did not want [you] to’. The character references evidence both regret and remorse. Your brother writes that you have told him countless times how sorry you are and how, if you had the chance, you would undo all this. Your cousin also considers you extremely remorseful. I accept you have some remorse for your conduct, although it is not particularly advanced or well-formed.
There is material, including in the psychological report, that suggests you are not finding custody easy and you do not feel safe. Ms Cokorilo notes that you made vague statements about ‘stuff out of [your] control’, but you indicated to her that you did not want to say anything further. You rated your mood as four out of ten and reported low mood, anxiety and disturbed sleep. You have spent time in protective custody due to threats made by to you by associates of the deceased. You had been abusing both antipsychotic and antidepressant medication daily whilst in custody, but this stopped once your trial commenced. You receive regular injections of buprenorphine, which assist you with detoxification and withdrawal from medication. Additionally, conditions in custody have been more onerous as a result of the COVID-19 pandemic, and I take that into account by way of mitigation.
You were 22 years old at the time of this offence, and sentencing courts have recognised that there is great public benefit in rehabilitating youthful offenders and maximising the prospect that they will go on and live lawful and worthwhile lives.[5] You are still a young man, and the principles in Mills’[6] case relevant to sentencing young offenders have application here, although their relevance is substantially moderated given the extremely serious nature of your crime.[7] That said, you do not have a lengthy criminal history, and your rehabilitation remains a realistic and relevant sentencing purpose. You have the ongoing support of your father and brother. You have completed Year 12, and it seems you are capable of working and succeeding, but will likely require considerable support once you are finally released. It is difficult to assess your prospects of rehabilitation, given the length of time you will be spending in gaol, but if you receive and engage with treatment and supports while in custody, your prospects must be at least reasonable and may be good.
[5]R v McGaffin (2010) 206 A Crim R 188, 210 [69].
[6][1998] 4 VR 235, 241.
[7]Azzopardi v The Queen [2011] VSCA 372, [34]-[38].
The standard sentence for murder is 25 years’ imprisonment.[8] The standard sentence is intended to represent the sentence for an offence ‘in the middle range of seriousness’, taking into account only the objective features of the offence. The standard sentence, like the maximum penalty, is one factor I must take into account.[9] The seriousness of the offence must still be assessed in the conventional way by considering both objective gravity and moral culpability.[10] When fixing a non-parole period, I must fix a period of at least 70% of the head sentence if the head sentence is 20 years or more, or at least 60% if the head sentence is less than 20 years, unless it is in the ‘interests of justice’ not to do so.[11]
[8]Crimes Act 1958, s 3(2)(b). Pursuant to ss 3 and 5(2G) of the Sentencing Act 1991, murder is also a category 1 offence, and the court must impose a term of imprisonment.
[9]Clark (a pseudonym) v The Queen [2022] VSCA 89, [27] (Priest and Walker JJA), citing McPherson v The Queen [2021] VSCA 53, [31] (Priest and T Forrest JJA).
[10]Brown v The Queen (2019) 59 VR 462, 479 [55].
[11]Sentencing Act 1991, s 11A(4)(b) and (c).
The prosecution submitted your moral culpability is very high, given your crime was committed in circumstances where you sought out Machar Kot in order to fight him and then initiated a physical confrontation. Whilst the stabbing was not planned, it was not a spontaneous act nor a reaction to a threat. Eleven seconds elapsed from the time you commenced walking up the stairs to the point you stabbed Mr Kot. The prosecution submitted that Mr Kot was unarmed, retreating and vulnerable. He was totally innocent of any wrongdoing, and others were trying to protect him from you. The murder was committed in a public place, and it is clear from the CCTV footage that, despite the early hour of the morning, a number of people were coming and going. However, it was not suggested that any member of the public was placed at risk by your conduct.
Your counsel submitted that the Court could not conclude you had murderous intention for the whole 11 seconds. At the time you commenced following the deceased with the knife, you may have intended to menace him or cause injury, or perhaps serious injury. Mr Cronin submitted you should be sentenced on the factual basis that you formed an intention to cause really serious injury at the time or immediately prior to you stabbing the deceased. He submitted that the prosecution have not established that you attended armed with the knife, although you certainly had possession of the knife at the time of the crime.
There were a number of aspects to your crime, which are relevant to an assessment of the seriousness of your offending. You were on bail at the time, which is an aggravating factor. The situation was entirely of your making, given you actively sought out the victim on this night, intending to fight him. At the time you commenced following Mr Kot, armed with the knife, the fight was over. Neither of you had been significantly injured and arguably no-one had won or lost. Once you reached the bottom of the stairs, you continued your pursuit of Mr Kot, losing one shoe and both dropping and then retrieving the knife as you ascended the stairs. Mr Kot immediately tried to move away from you. At the time he was stabbed, Mr Kot was effectively cornered at the top of the stairs. He was unarmed, and a number of his friends were trying to keep you apart. You manoeuvred yourself around them in order to inflict the fatal stab wound. There was only one single stab wound inflicted with a fast, small jabbing motion and with mild to moderate force, but it was inflicted into the vulnerable centre of Mr Kot’s torso.
You immediately left the scene and showed no concern for Mr Kot. However, I accept that at the point you left, Mr Kot had not collapsed on the ground and you may not have realised that you had killed him. I note that leaving the scene was never relied upon by the prosecution as incriminating conduct. It is unknown whether you or one of your friends brought the knife on this night. It is unknown whether, after you had dropped the knife earlier, it was handed back to you, or whether you requested or retrieved the knife. Whatever the circumstances that placed the knife in your hand, you had clearly armed yourself with the knife when you determined to follow the retreating Mr Kot back towards the hotel. I am satisfied, consistent with the jury’s verdict, that by the time you reached the bottom of the hotel stairs you had determined to stab Mr Kot, intending to cause him really serious injury, and you maintained this intention throughout the approximately 11 seconds it took you to reach Mr Kot and inflict the fatal knife wound. Of course 11 seconds may seem a long time when watching and rewatching the CCTV footage, but really it is not long at all.
I am obliged to disregard sentencing practice which existed prior to the introduction of standard sentencing,[12] although the principles found in those cases remain of relevance.[13] Both counsel referred to the decision of Director of Public Prosecutions v AK (‘AK’).[14] That case did not involve standard sentencing, however given the reliance placed on the decision by the parties, I will state briefly that in my view, the offending in that case is a more serious example of the crime of murder. Whilst it too involved a single stab wound, at the time AK lunged forward and inflicted that wound, the victim was being held by a co-accused or accomplice. AK went on to kick the victim in the stomach after he had stabbed her. He had attended her hotel room uninvited and been asked by her to leave. There were of course differences including matters personal to the offender; in particular, AK was only seventeen years old at the time of the offending.[15] In making these observations, I am in no way minimising the seriousness of your crime or its impact on Mr Kot’s family and friends.
[12]Sentencing Act 1991, s 5B(2)(b).
[13]Brown v The Queen (2019) 59 VR 462, 464 [4].
[14][2019] VSC 852.
[15]There were of course numerous other differences in the matters personal to AK, and he had very serious and substantial prior convictions for a young person. I note that even if the matter had been a standard sentence offence, the standard sentencing regime would have had no application given his age – see Sentencing Act 1991 s 5B(1)(a).
The principle of totality is important when determining the appropriate sentence. You spent 79 days on remand between February and May 2020. You were arrested for this murder on 25 June 2020 and remanded into custody, where you have remained since. On 3 November this year – that is, between verdict and plea – you were dealt with in the County Court for the offending that occurred in February 2020. You received a total effective sentence of 31 months’ imprisonment with a non-parole period of 20 months, and 692 days pre-sentence detention was declared, which included the 79 days. Given the bulk of your available pre-sentence detention was declared when you were sentenced in the County Court, you have 247 days’ pre-sentence detention available for this matter. However, you have been continually in custody for almost two and a half years since 25 June 2020. Significantly, any capacity for your County Court sentence and this sentence to run mostly concurrently has been adversely impacted, as only approximately seven months of that sentence remain to be served. Of course, it is important that any application of the totality principle does not result in a sentence which fails to adequately reflect the seriousness of this offence. However in the circumstances here, totality does operate to modestly moderate both the head sentence and non-parole period I would have otherwise imposed. For completeness, I note that given the non-parole period imposed by the County Court has expired, there is no requirement to fix a new non-parole period.[16]
[16]Sentencing Act 1991, s 14.
After balancing all of the relevant matters referred to in these reasons, I have determined that the sentence I will impose will be less than the standard sentence. Mr Cronin did not submit that a non-parole period of less than the mandated minimum should be fixed in this case, however that does not relieve me of the obligation to consider whether the interests of justice require a lesser non-parole period. In my view, despite your youth and all matters favourable to you, they do not.
Murder is the most serious crime in our legal system. You have taken the life of Machar Kot, who was just 21 years old and had his whole life ahead of him. His mother and sister, and no doubt all his family and friends, have been devastated by his death. The sentence I impose must adequately punish you for your crime, and publicly denounce your conduct on this night. General deterrence – that is, the need to send a message to other would-be offenders – is a very important sentencing principle in these circumstances. As this case tragically shows, a single stab wound is all it takes to kill another person and commit the crime of murder. All people, but particularly young people, need to understand that if you use a knife to kill another human being, then you should expect to spend a very lengthy portion of your own life in gaol.
Mr Deng, please stand.
The sentence of the Court is as follows:
On the charge of murder, you are convicted and sentenced to nineteen years’ imprisonment. I fix a non-parole period of fourteen years’ imprisonment. I declare you have served 247 days by way of pre-sentence detention, and such period is reckoned as time already served under this sentence.
For the avoidance of doubt, I declare that this sentence will run concurrently with all other State sentences currently being undergone.
I will make the disposal order sought by the prosecution.
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CERTIFICATE
I certify that this and the 12 preceding pages are a true copy of the reasons for sentence of Justice Fox of the Supreme Court of Victoria delivered on 15 December 2022.
DATED this fifteenth day of December 2022.
Associate
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