Director of Public Prosecutions v Dhal

[2022] VCC 2033

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR-22-01413

Indictment No. N10457665

DIRECTOR OF PUBLIC PROSECUTIONS

v

AKOT DHAL

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JUDGE:	HIS HONOUR JUDGE TINNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	10 November 2022
DATE OF SENTENCE:	21 November 2022
CASE MAY BE CITED AS:	DPP v Dhal
MEDIUM NEUTRAL CITATION:	[2022] VCC 2033

REASONS FOR SENTENCE

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Catchwords:    Intentionally Causing Serious Injury; RCI. stabbing. Critical injuries to the female victim of ICSI. Past intimate partner; Summary offences: commit indictable offence on bail and possess controlled weapon.; Early Plea; Worboyes v The Queen [2021] VSCA 169; COVID-19; 31 years of age with relevant criminal history. On bail at time of offending

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr J. McCarthy	Office of Public Prosecutions
For the Accused	Mr N. Brown (for sentence) Ms A. Dulcie (for plea)	Nelson Brown Legal

HIS HONOUR:

1Akot Dhal, on Thursday, 10 November of this year you pleaded guilty to one charge of intentionally causing serious injury and one charge of recklessly causing injury.  You also pleaded guilty to summary offences of committing an indictable offence whilst on bail and possession of a controlled weapon.

2You are 31 years of age. You have a short but relevant criminal history.  You were also on bail at the time of this serious offending.

3The agreed summary of prosecution opening for the plea correctly sets out the maximum penalties.  Intentionally causing serious injury is what is described in the Sentencing Act 1991 as a Category 2 offence, though that is academic in this case. It was correctly conceded by your counsel that the only disposition available here was a significant term of imprisonment with a non-parole period. Plainly, no other outcome is open to the court so I will not spend any time discussing the various exceptions set out in s5(2H) of the Sentencing Act 1991. It is explicitly conceded that none of them apply here.

Facts

4The agreed summary of prosecution opening, dated 18 October 2022, was marked as Exhibit A on the plea.  It was read aloud by the prosecutor,
Mr McCarthy.  It is a lengthy summary and your counsel, Ms Dulcie, told me that it was, as the title suggested, an agreed summary.

5There is no point then in my just transferring everything in that agreed document across into these, my sentencing remarks.  I will sentence pursuant to the agreed summary, supplemented only by those matters in the depositions which were either raised by me on the plea or were referenced in the opening or the submissions made by either of the parties.  For instance, the two reports of
Dr Schreiber that we have just been discussing recently, went into far more detail than the agreed summary as to the injuries and the treatment and the ongoing risks, and there was no need for them to be tendered.  They were part of the depositions and your counsel told me that they were not in any way in dispute.  There was also the photograph of the knife at p65 of the depositions, and some photographs either in Dr Schreiber’s statements or elsewhere in the depositions, of the injuries to Mr Kur and the stoma that was created on
Ms Malith’s body.  Also there was the CCTV footage which was marked as a separate exhibit (Exhibit B) and played in open court, and I have viewed it since the plea as well.

6By way then only of a brief summary, you had been in a very short, intimate relationship with the victim, the subject of Charge 1, a young woman named Nyakol Malith.  Your counsel told me it was only for about a month.  Ms Malith was only 21 years of age at the time and is only 22 now.  The relationship had ended some days before the incident.  That is an agreed fact in this case. The second victim is one of your friends, a man named Abraham Kur.  He had gone to the venue with you and happened to be in the immediate vicinity of Ms Malith when you set upon her with a knife.

7Over the course of that day, Monday 7 March of this year, you had been consuming a number of alcoholic drinks.  You attended upon Ms Malith’s home and you were looking for her.  She was not home and you told her mother that you were looking for Ms Malith as there were some things that they needed to discuss.

8Later that evening Ms Malith went to the St Albans Hotel.  You went there late in the night with Mr Kur and another male.  It was about 11:11pm. Your car was parked out on the street and the three of you then went inside.  You saw
Ms Malith in the smoking area and you approached her, saying you wanted her to go home with you.  She refused.  A short time later she went back into the gaming room and there she saw your friend, Mr Kur, whom she was in the process of actually greeting.  You had followed her into the gaming room and as you walked you removed the boning knife, which had been concealed in your clothes, and you then, without any warning at all, stabbed her with a swiping action to her back.  Mr Kur tried to turn her away from you and you stabbed him with the next blow of the knife, a deep laceration to his non-dominant, left forearm.  You then used the knife again and forcefully stabbed Ms Malith in the abdomen.  She ran from you.  Security guards attended.  This incident was captured on CCTV, which was played on the plea.  As I say, I have viewed it again since the day of the plea and it is easier to see in that sort of setting than looking from the bench at a small screen in a large court.  The footage shows the complete lack of any warning.  It shows the cowardly nature of the first blow to her back.  It shows the level of force of the abdominal stab.  It also shows the way in which you put the knife back in your pocket and calmly walked away from the venue.  There is a second camera angle capturing your departure.  The footage of the assault also shows that you had removed the knife from its concealed location prior to any physical contact between the victim and Mr Kur.  It is as plain as day that you were following her to stab her, and this was not triggered by her interaction with Kur.  This calls into question your account to Mr Candlish and I will say more about that in due course.  Let me say, though, that if that action or the other that you described to Mr Candlish of Ms Malith sitting on another person’s lap are said to be a triggers for an action such as yours, they would have no mitigatory value whatsoever.

9You left the venue and you returned to your car parked outside the venue.  You removed a jacket from the car and were then seen a short time later to discard something into the grounds of a nearby church in Ena Street.  That something was the knife.  You were getting rid of the evidence, the evidence of the serious crime you knew that you had committed.

10Police attended and dealt with the developing medical emergency, for that is what it was.  They took turns applying pressure to Ms Malith’s abdominal wound.

11Both she and Mr Kur were taken by ambulance to the
Royal Melbourne Hospital.  She was in a critical condition and had sustained massive blood loss.  She was unconscious.  She was lucky to survive.  The summary and the associated reports describe some of the injuries, being a sharp force injury piercing crucial organs including her liver.  There was a massive bleed in the abdominal cavity requiring large blood transfusions.  There was a buttock wound and rectal perforation.  There was a high grade (Grade 4) laceration to the liver.  There was a large laceration through the stomach and multiple cuts to the small intestine.  There was also a collapsed lung.  She was in a highly critical state and without the efforts of the paramedics and before them, the bystanders and the police, without the multiple surgeries and the massive blood transfusions, she most certainly would have died.  That is conceded.  An emergency laparotomy was performed at the hospital and her various internal injuries were explored and repaired.  Her gall bladder was removed.  There was surgical exploration of her rectum owing to the intestinal injuries and the need to create a diverting stoma.  A second stoma had to be created.  There was injury to the right branch of the portal vein, which is the main vein between the bowels and the liver.  She was in intensive care for
six days and in hospital for over two weeks and was discharged on 21 March with a stoma bag in place, with a review scheduled in the colo-rectal unit in the following two to three months.  The stoma was in place at the time of her VARE in April of this year.  As I say, the review within the unit was to take place two to three months after her discharge from hospital.  The report of Dr Shreiber speaks of the need for further surgeries.  It speaks also of the future risks to her of abdominal and bowel complications, scars, spontaneous lung collapse land, of course, psychological issues as well arising from this trauma.  I know from the materials before me that she had an emergency laparotomy. The presence of scars is a given.

12Dr Shreiber was basically reviewing the medical records available to him and his report is based on that.  He has not had any examination of the actual victim herself and the report is dated 7 May of this year.  He, unsurprisingly, suggested the police seek the opinion of Ms Malith's general practitioner or another treating clinician to assist the court regarding the medical and mental health sequelae.  He spoke of the need for further surgeries regarding her stoma as well.

13In the course of the plea I raised some issues about the unsatisfactory nature of the medical material before me.  This is not a case where there was an impact statement.  For whatever reason, Ms Malith has not made one.  It would seem she has fallen out of contact with the prosecution agency but after the plea I sent an email to the prosecution copied into the defence team, raising my concerns about the vacuum in the medical evidence in this case.  That has been marked as an exhibit as a matter of completeness and Mr McCarthy is again prosecuting today and has taken me through a pretty detailed chronology as to what has occurred since the receipt of that email, all the steps that have been taken, none of them bearing any fruit in terms of either finding Ms Malith or finding her medical practitioners or getting any further update.  I do not see the need to go through the entire chronology, but as he has also spelt out the chronology of what had taken place prior to the plea date, including conferencing with Ms Malith in May and August of this year.

14Those conferences did not give any sense as to her ongoing medical issues at that time or even as to whether the stoma was still in place.  The fact is she is not contactable.  Such steps as have been taken have not borne any fruit.  There has been a request to Medicare marked as urgent but there is apparently a sizeable backlog there and there is talk of a potential turnaround of five months for that information to come back, and that information would be pretty rudimentary, spelling out, presumably, simply the nature of the Medicare treatment codes and the like.  It would not involve anything such as a report from a practitioner or anything like that.

15In the circumstances there seems little value in my contemplating adjourning the plea to await updated material such as that and there is no suggestion of any further material coming in the direction of the court or any contact with Ms Malith.  Had the prosecutor flagged the likely arrival of updated medical material I would not have sentenced today, I make that very plain because I do think there is a pretty unfortunate vacuum in the evidence, but the reality is I do not think there is any great benefit in adjourning off the matter because, as I say, the receipt of the Medicare information, which would really not answer any of these queries anyway.

16Mr Kur obviously sustained far less serious injuries, but he required hospital admission and a hospital stay until his discharge on 10 March.  He needed plastic surgery to repair the significant damage caused to his left arm.  There was nerve damage and extensive damage to his muscles and to his tendons.  The various implicated nerves and tendons and muscles are spelt out in
Dr Shreiber’s report and he likewise speaks of the further risks for Mr Kur.  He is in a similar position, in that there is simply no updated material at all for him and not even any contact with the OPP.  So again, I do not think there is point in me not sentencing in this case today.

17Back then to the night in question.  You were found in the vicinity and you were arrested.  You lied to the police in the interview that was conducted the following morning.  You denied having had a girlfriend and denied any involvement in the stabbing, even denying it when you were shown the footage of you engaged in the stabbing.  You implied that someone else was responsible, saying that you did not wish to be a ‘snitch’, as you put it.  It is not a matter in any way in aggravation that you adopted that stance.  It simply deprived your counsel from pointing to your assistance to the police by way of mitigation.  There was no assistance.

18You were on bail at the time for a variety of charges arising from an incident on 7 February 2020, where you had crashed your car, assaulted a bystander and then an undercover police member and refused a PBT, all of this having occurred after you had breached the terms of the interlock condition which was on your licence.  Those matters are listed later this year and your counsel told me that you are pleading guilty to them, which is why I have referred to them in those terms.

19You have been in custody since your arrest back on 7 March of this year. 

20So much then for my brief summary of the agreed summary.  I will sentence pursuant to the far more detailed agreed statement as well as the CCTV footage and the medical material.  I have mentioned the photograph of the knife at p65 of the depositions.  It is a dangerous implement indeed and it was in the hands of a person who was used to wielding it in the abattoirs.

21Your offending was really quite incredible.  It is very fortunate indeed not to have caused the death of Ms Malith and had it done so, you would have been sitting in a dock in the Supreme Court, of that there could be no doubt at all.  Well, as luck would have it, she survived and hence you fall to be sentenced by this Court for what is undoubtedly grave offending.

Impact

22There are no victim impact statements from either victim, as I have spelt out earlier in these remarks.  Each seem to have fallen out of contact. There has been virtually no contact with Mr Kur.  Mr McCarthy spelt out the level of contact with the primary victim with those couple of conferences conducted earlier this year in May and then in August, but there has been an inability to contact her since, and again I see no need to spell out the full chronology of all that has been done.  It would seem that Ms Malith apparently knew of her rights to make an impact statement but, for whatever reason, she has chosen not to provide an impact statement and, as I have said earlier, nor is there any updated material dealing with the ongoing impacts for either of these victims. I do not pretend that this is satisfactory. It plainly is not, which is why I emailed the parties.  

23Of course, the immediate impact for Ms Malith was dire.  She almost died.  She certainly would have but for the efforts of those at the scene and those at the Royal Melbourne Hospital.  She emerged from hospital as a 21-year-old woman with a stoma bag and scarring and faced a lengthy enough recovery and the risks of complication spoken of in the report of Dr Shreiber and the need for ongoing surgery.  Mr Kur sustained serious injuries to his arm.  I use that term not in the way the word ‘serious’ is employed in the Crimes Act 1958.  It was merely to make it plain this was not some slight injury.  It was a very deep laceration which required surgery and repair and he would necessarily have faced a decent period of recovery.  It is not possible for me to act on the assumption in his case that there has been any large, ongoing impact.  He may well have but I am simply not provided with the necessary information and I can only sentence on the materials before me.

24Ms Malith is in a different position.  The nature of the injuries that she sustained, even accepting the best case scenario of a successful reversal of a stoma, we know on the material that that could not and would not have happened for some months.  She will never forget the day that you caused serious injuries to her and she is left with the risks spoken of and she spoke also of her understanding in the VARE of the long road ahead for her recovery, which is hardly surprising given the nature of the wounds and the procedures carried out on her.  I take into account the impact of your crimes as I am required to.

In Mitigation

25Your counsel, Ms Dulcie, had prepared some written plea submissions dated

[1]R v Verdins [2007] VSCA 102; 16 VR 269; 169 A Crim R 581 (“Verdins”)

8 September 2022.  In the course of the plea she retreated to some extent from some of the written submissions, for instance, the description of your prospects of rehabilitation as being good.  She retreated from any suggestion that you had profound insight and remorse.  Likewise, she retreated from any submission that limb 6 of the case of Verdins[1] applied here or that the potential loss of your house should be taken into account by way of, ‘extra curial punishment’.  She withdrew the submissions that any COVID-19 increased burden should be factored into the sentence in the way set out in her written submissions, conceding that there had been improvements in the custodial conditions almost from the moment that you arrived in custody in March of this year and that the size of the sentence demanded by your crimes would transport you a very long way from any impacts felt by this global pandemic.

26She called a psychologist, Mr Candlish, and relied upon both his report and the evidence that he gave on the plea.  She filed a letter of apology from you.  That letter was written by you only earlier in the week of the plea and she accepted that it had some issues of deflection, where you spoke very frequently about the role of alcohol.  I will say more about that letter later in these reasons.   There was also a support letter from Mr Maduot from the Dinka Community Union as well as a certificate of course completion.

27The Court was informed as to your family and educational background, the circumstances in which you emigrated to this country, as well as your relationship and employment history.  I was told that you were an Australian citizen.  I asked specifically about that.  Ms Dulcie made submissions as to your prospects of rehabilitation.  As I say, she moderated that submission, arguing that the Court really could only be guarded in the circumstances of this case.   She described some of your past criminal history and conceded the relevance of that history.  She made some submissions about the relative objective gravity of the offences to which you have pleaded guilty, as well as the relevant sentencing purposes in this case.

28She relied upon the following matters in mitigation:

·your early guilty plea in the midst of the global pandemic;

·the presence of some remorse;

·your disadvantaged early background;

·Limb 5 from the well-known case of Verdins[2];

·the impacts of COVID-19 upon your custodial experience to date, as well as to a much lesser degree into the future.

[2]R v Verdins [2007] VSCA 102; 16 VR 269; 169 A Crim R 581 (“Verdins”)

29She conducted an excellent and comprehensive plea on your behalf.

30She conceded the gravity of the major offence and that a significant term of imprisonment was obviously required here.

Prosecution

31Mr McCarthy, who appeared on behalf of the Director of Public Prosecutions, had prepared some detailed written submissions dated 8 November, which were marked as Exhibit C.  Those submissions were generally uncontroversial, going to matters of firmly established sentencing principle.  For instance, the relevant sentencing purposes and the features of aggravation in this offending working through various matters set out in the case of Nash[3].  The submissions also dealt with some of the matters raised in mitigation.  The Crown did not challenge that the so called Bugmy[4] principles might have some application here but argued that as was always the position, it was a matter really of what weight they were given.  Though no causal connection was required for the application of those principles, nonetheless as one was being relied upon on the plea, there was the complicating factor of alcohol in this case.  In any event, they argued, such a drastic attack as yours demanded that weight to be given to other purposes of sentencing.  Your background really could not drive the sentencing exercise.  The Crown seemed to challenge the diagnosis of the mild personality disorder but at the same time ultimately did not appear really to challenge that the fifth limb of Verdins might be engaged in this case.  They challenged the submission as to extra curial punishment represented by the potential loss of your house.  Nor did they accept that the offending was anywhere near as spontaneous as was being suggested.  I was directed by the Crown to a Court of Appeal leave application decision of Packard[5] but plainly it was not a comparable case.  I was referred to the case of Nash and taken through the various aggravating features present here.  I should say your counsel accepted the presence of a number of aggravating features in this case.  Plainly, the Crown were calling for a prison term with a non-parole period but so much had been readily conceded by your own counsel, who herself conceded that this was a very serious instance indeed of the inherently serious offence of intentionally causing serious injury.

[3]Nash v R (2013) 40 VR 134 (“Nash”)

[4]Bugmy v The Queen [2013] HCA 37; 249 CLR 571 (“Bugmy”)

[5]Micah Packard (a pseudonym) v The Queen [2021] VSCA 56

32I will discuss these various submissions shortly.

Background

33I will turn firstly though to your background.  The material placed before me as to your background is based entirely on your account.  That is not that unusual on a plea and often enough a Court will act on that sort of account.   However, you were engaged to some extent in, 'impression management', with Mr Candlish and he spoke of instances of likely exaggeration.  He said that  you were likely seeking to over emphasise problems at times.  He reported that you told him you had spent several years in a refugee camp.  See paragraph 20.  You had not.  Your counsel told me it was 12 months.  You reported to
Mr Candlish being repeatedly bashed by your mother, stepfather, aunts and uncles and he asked you about the worst injury that you had ever received.  You described a broken leg but when he probed you further on that topic it then became plain that that was not even your injury.  See paragraph 22.  He commented on the unlikely nature of an account that you gave about attempting suicide in a toilet bowl and the hint of exaggeration.  See paragraph 39.  There was an invalid result on one of the major tests administered by him, a the PAI, and elevated results on another (the TSI), which warned of the need for caution in interpreting that later result.  There was your account to him or I should say your inability to explain to him, when he asked you why you had the knife on your person within the venue.  Also your claim, which I do not accept for one moment, that you do not actually recall the stabbing.  I also have your interview account where you just point blank lied, not just denying your own role but saying that you, 'couldn't snitch', implying that someone else was responsible, even though you were looking at the very footage capturing your own acts.  You seemingly denied knowing the victim or at least having been in a relationship with
Ms Malith.  I also have the letter of apology which your counsel concedes involves a degree of deflection by you.

34You are not a reliable historian and the question then arises for me:  why should I accept your account of your background?  This is not a case, as sometime exists, where there are some school reports or contemporaneous reports or counselling notes or even evidence from a family member or the accused himself detailing the nature of their background.  I do accept that those sorts of documentary items would be almost impossible to access, even if they existed, given the country where you spent your early years.  Ultimately though, I have your account that has been provided either to your counsel or to Mr Candlish.  I have no material from your mother or your uncle or any other relative or from you on the plea.  You are prone to exaggeration or impression management, call it what we will. You are prone to deflection.  So there are some real issues presented here.

35Often enough in sentencing remarks I say that I have no reason not to accept the family background that has been placed before me, even where it is entirely sourced from an accused.  Well, here, given some of the matters touching upon either your honesty or at least your reliability, and the complete absence of any supportive materials, I do have some reasons to doubt some aspects of your account.  I do have some reservations about it.

36What I have been told as to your personal and family background is set out in the written outline on pages 4 and 5 as well as in the report of the psychologist,
Mr Candlish.  There have also been some supplementary oral submissions.  I am not going to waste your time or mine just restating all of this detail.  There is no point in my doing that.  For at the end of the day, though I am far from satisfied on the balance of probabilities of the accuracy of everything you have said as to your background, I am nonetheless satisfied on balance that there had been significant enough disadvantage in your formative and early years and childhood.

37I do not doubt that you were born In Sudan in January 1991.  You are
31 years of age.  Like many born in Sudan in that timeframe, I am satisfied that you would have had a difficult life, to some extent exposed to violence and dysfunction.  I am satisfied you have never met your father and had only limited time with your stepfather, who had other family commitments.  I am prepared to accept that there was some domestic violence in that relationship with your mother.  Maybe you were exposed to physical violence and sexual misconduct yourself, though the extent of that is really quite impossible for me to determine.  However, when growing up in Sudan, I do not doubt that you witnessed and experienced many things that no child should.  I have dealt with enough people from that region to understand some of the realities of life in that region in that timeframe.

38Your family were poor.  You were an only child but had five half siblings.  You had no schooling to speak of until you emigrated to this country and prior to that as a 12 year old, you stayed in a refugee camp in Kenya for 12 months.  It is all unenviable.

39You came to Australia with your uncle in 2004 and settled in Melbourne as a
13 year old.  Family members joined you in due course.  You were illiterate even in your own language and could speak very little English, so again it requires no imagination at all to accept that it was a very tough start in this country as well.  There was some racial abuse but you completed Year 12, which is to your credit.  You have worked reasonably consistently in the meat industry, often as a boner.

40As I have said, you are an Australian Citizen.

41You met your long-term ex-partner in 2012 and you had six children together.  You purchased a home in 2015 or 2016.  I was informed that you had abused alcohol and engaged in family violence in the course of that relationship.  I was told that you attempted suicide in 2019.  That relationship ended in 2021, though you kept seeing each other and your partner has subsequently moved interstate, so you have no contact with her or any of the children.

42You had only a very short-term relationship with Ms Malith.

43I was told that upon being remanded you experienced 14 days' quarantine and that there had also been some other lockdowns.

44You have a short criminal history, which is undoubtedly relevant to my task.   You have appearances for acts of violence and most of those targeted your long-term intimate partner. They all targeted women.  The prosecutor told me that the recklessly causing injury dealt with in 2013 related to another woman, seemingly not an intimate partner.  Your instructions to your counsel are that it related to your long-term partner.  Nothing hangs on that.  There were assaults dealt with in 2017 as well as breaches of family violence intervention orders.  You have breached intervention orders in the past and you failed to comply with the community corrections order imposed on the first such occasion.  You were sent to prison in 2017 for assaulting your then intimate partner and breaching an intervention order and a safety notice and that has very evidently not deterred you.  You have not taken your chances, having breached that community corrections order and, as I have said, you were on bail at the time of this very serious offending that I am dealing with for assaults and other criminal conduct.  As I said earlier, you will be pleading guilty to those 2020 charges.  I was also told some detail about another pending matter but the details were just so vague it is best that I put that matter aside altogether. \  Your counsel was not even aware of it until told by the prosecutor and does not know how you will be pleading, so, I put that matter altogether aside.

45I must pass proportionate sentences here, and that criminal history does not aggravate the offending that I am dealing with. Nor do you fall to be sentenced a second time for any of that past offending.  You received those other sentences and you have served them.  That history does, however, have some relevance to my task because I have to make judgments about your risk of
re-offence and your prospects of rehabilitation.  I have to make judgements about the need to deter you from future offending, as well as the need to protect the community from you. The need for specific deterrence and community protection is very clear here, given the nature of this offending and that past offending.

46Now, I have been true to my word and I have not set out all of the detail of your background.  There is no need to.  I have, for instance, not set out details of your drug use history but do not doubt that there have been issues with a variety of drugs and alcohol.

47Even making allowances for any exaggeration or impression management, I am prepared to accept on the balance of probabilities that it was a background of some trauma, dysfunction and disadvantage.

48An offender's individual circumstances will always be of importance to a court.  Your background was, as I have said, one of significant enough disadvantage.  The effects of childhood deprivation and trauma are not just matters of historical significance that can be shrugged off or ignored.  Taking lifelong damage that is the result of childhood exposure to violence or sexual or physical abuse or neglect into account when sentencing is just the mark of a humane society, and it is no answer at all to say that those events occurred when you were a child. The effects of these things do not just diminish with the passage of time.  They do actually leave their mark.  I am satisfied that you had an unenviable early life and then had to adjust to an entirely different world upon migrating to this country.  None of that has been easy.

49However, as important as your background is, it does not lock a person into a predetermined course.  You have always had choices and in fact really the gist of the plea was that you seemed to overcome some of the impediments that had been placed in your way. You completed Year 12 and have a good employment record and had bought that house.

50Your counsel was relying on the principles from the case of Bugmy.

51That case and that line of authority makes clear it will always be a matter of what weight to attribute to evidence of a disadvantaged background.  The cases stress that social disadvantage will not attract the same weight in every case or in the same way.  Sometimes it might lead to a substantial reduction in moral culpability and also sizeable reductions in the weight given to general and specific deterrence.  Let me make plain, that is not the position here.  Sometimes it might be enough to take it into account in a general way, without those sizeable reductions.

52It does not, by the way, all head in one direction.  It can in some cases lead to greater weight being given to the protection of the community.

53The weight to be given to disadvantage will depend on the nature and the extent of the disadvantage, the nexus, if any, with the offending, though none is required, as well as the nature of the crime and the relative importance in a particular case of sentencing considerations, including deterrence, community protection and rehabilitation (see the case of Terrick[6]).  It is clear, though, from the case law that where there is a strong nexus, then the mitigatory value will rise (see the case of Snow[7]).

[6]DPP v Terrick [2009] VSCA 220 (“Terrick”)

[7]DPP v Snow (a pseudonym) [2020] VSCA 67 (“Snow”)

54Whilst greater weight will be given where there is that direct nexus, these Bugmy[8] principles do not depend on the existence of some proven direct or causal nexus.  Indeed, it will never be that easy to directly link events that are sometimes many years, if not decades, removed from each other and countries apart, for that matter.  Here the submission made by your counsel was that there was a direct casual nexus between your background and your conduct on this night.  You had been exposed to violence and had issues with trust and abandonment.  These submissions, though, do not really satisfactorily grapple with the impact of being drunk, as you no doubt were.

[8]Bugmy v The Queen [2013] HCA 37; 249 CLR 571 (“Bugmy”)

55Regrettably, enough men have difficulty coping when a relationship ends.  Enough people, both with or without significant disadvantage in their early lives, experience anger or possessiveness or jealousy or rage in such a setting and erupt or act violently.  Enough of them, who so act in that way, are disinhibited by alcohol or drugs.  Your own letter spells out your thoughts about the contribution of alcohol.  I cannot find to the required degree that there is any true causal link or nexus between your background and these crimes.  By the way, had that nexus been established on balance, though no doubt leading to greater moderation of your culpability, as well as some of the other sentencing purposes on the one hand, on the other, it is the sort of thing which would likely elevate the need for community protection.  Anyway, as I say, I am not satisfied that there is any direct causal link demonstrated here.  I am, however, satisfied of the existence of the disadvantage such as to apply the principles from Bugmy to my task, and I do.

56There cannot be substantial allowances here, and that is owing to the startling nature of the violence here and the need to protect the community from you and to deter you and others from future offending.  They are very important purposes in this case.  Further, you have chosen to drink alcohol and to disinhibit yourself in that respect.  That is not in any way mitigatory.

57I give then full weight to your background, as that phrase is used in cases such as Bugmy, Marrah[9], Snow and Terrick.

[9]Marrah v The Queen [2014] VSCA 119

58I turn now then to consider the other matters that have been raised by your counsel.

Guilty Plea

59The first of those matters is your guilty plea.

60You have pleaded guilty at the earliest opportunity.

61As a result of taking this early responsibility for the offending, the time, cost and effort of a committal in the lower Court, or a trial up in this Court, has all been avoided.  Witnesses have not been required to give evidence at any stage.  Giving evidence can in fact be a stressful experience and it has been completely avoided here.

62You have facilitated the course of justice and you must be adequately rewarded for doing so.

63Your guilty plea is worthy of extra weight for the many reasons set out in the Court of Appeal decision of Worboyes.[10]  A large backlog of cases has arisen in the course of the global pandemic.  We are now working our way through that backlog but your case was never part of that backlog as it was so very swiftly settled.

[10]Worboyes v The Queen [2021] VSCA 169

64So I take these various matters into account in mitigation.

Remorse

65Your counsel argued in her written submission that you were extremely remorseful.  She relied upon your early guilty plea as well as your letter of apology.  She retreated very significantly from that submission in the course of the plea, and for good reason, as it did not accord with the material before the court.  She ultimately argued that there was some remorse in this case.  There was certainly no remorse in the interview, where you denied having any role to play in any stabbing, but of course the interview was the morning after, so one can make some allowance for that.  People can lie to the police but at a later point feel remorse for the crimes that they have committed. That is not too uncommon.

66However, here there is the absence of even a hint of remorse expressed in your most recent discussions with Mr Candlish.  Those three conferences were only in October. His report does not mention any remorse at all.  He ultimately confirmed in his evidence the absence of any expression of remorse by you and he spoke of the difficulties that you have in feeling empathy, owing to your personal makeup.  You spoke to him of your victim only in negative terms.  See paragraph 52.  Nor, for that matter, do I accept your account to him of the offence itself.  You were following Ms Malith to stab her, of that I have no doubt at all, none.  I do not accept that you are particularly remorseful at all.  Your counsel accepted that your letter of apology was problematic for the ‘deflection’ within it.  That was her word.  There are many references in your letter of apology to alcohol and its role in this behaviour.  Far more really than there should be.  She accepted that you were deflecting responsibility in that letter to a degree.  Alcohol did not actually cause this offending, though it is true it may have disinhibited you.  That letter was written only in the days leading up to the plea.  You say in the letter that you could not avoid your conduct.  You could.  You say you were unaware of yourself.  You were not.  You say you never meant to harm anyone.  Well, you did.  You intended to cause serious injury to Ms Malith and you succeeded handsomely.  You pleaded in the letter that it was, ‘really tough’, to be in, ‘that situation’, affected by alcohol, as though this explains why you pulled out a boning knife from its concealed location in your clothes and used it to stab your ex-partner in a crowded public venue.  There was nothing, ‘tough’, about your situation.  The relationship had ended.  She did not wish to go home with you.  She told you that.  As to your explanations to Mr Candlish, there is, as I say, the absence of remorse in your account to him and, in my view, the same style of deflection, even the claimed lack of memory.  I note also, his receiving from you an account of seeking revenge on this night.  No doubt you were.  You mentioned to him this notion of, ‘strike one and two’.  Your description of having no memory is not one that I accept for one moment.  See paragraph 13 of the report.

67Nor can I place any great weight on the additional letter from Mr Maduot of the Dinka Community Union, at least in respect of this issue of remorse.  It seems clear the author has no knowledge of your past criminal conduct.  He speaks of your non-violent nature.  I cannot act on his account of remorse, for again he repeats your claim of this being an unintentional act where alcohol was to blame and you intended harm to no one.  He was advocating for your immediate release, which suggests he may not even be fixed with a complete understanding of the true gravity of this matter.

68I am not satisfied that there is much remorse in this case at all.

69I am prepared ultimately to accept your counsel’s revised submission that there is some remorse here.  Ultimately, I find there is limited remorse in this case, implied mainly from your guilty plea, which I take into account in your favour.

Rehabilitation

70I turn now then to your prospects of rehabilitation.

71Your counsel argued in her written submissions that you had good prospects of rehabilitation.  She revised her submission and argued that I should have guarded views as to those prospects.  I agree that I can only be guarded here.  This was extraordinary violence, targeting your ex-intimate partner.  You have a strange or distorted attitude of entitlement towards women who are your intimate partners or who have been.  Mr Candlish speaks of this.  You have not taken your chances when offered them by the Courts, though I accept it is a short criminal history.  You have been sent to prison that one time and yet here, you have committed the most serious crime you have ever committed by a long shot, being the crime of intentionally causing serious injury.  You have limited remorse and I have the risk assessments in the report of Mr Candlish.  I accept that you have the mild personality disorder spoken of in his report.  That is not particularly easy to treat and requires significant treatment and cooperation from you and even then, many of the traits will not be lost.  He sets out the many things you would need to do, including the need to put alcohol and drugs behind you.  You have had serious enough issues with drugs over the years.

72You were a mature man with a short but relevant criminal history, engaging in these serious crimes.  You were also on bail at the time of this offending.

73You have some family support.  You have the matters which enliven the application of the Bugmy principles, which I have spoken of.  You are still a relatively young man and no doubt will wish to form intimate relationships in the future upon your release from prison.  You pose a real and not illusory risk to future partners.  That you could act in the way that you did on this night is deeply disturbing, more so in that you had this desire to possess and control your
ex-intimate partner, even though that relationship spanned less than a month and had ended.  So acting in this way, owing to perceived minor slights, spells out your inherent risk.

74Having considered all of the materials, I am prepared to accept that you have some prospects of rehabilitation.  I can put it no higher than that.  I really can only be quite guarded.  You pose a sizeable enough risk of violence to intimate partners in the future, of that I have no doubt at all.  Your deep seated and distorted views about intimate partners and your distrust are a dangerous mix indeed.

COVID-19

75I turn then to the issue of COVID-19 and its impact upon you.  Your counsel argued that there had been hardship arising from the impacts of the global pandemic upon your burden of imprisonment.  She cited a handful of cases at p8.  I have no difficulty at all in accepting that the COVID-19 virus and the response to it by those who run the prisons has increased the burden felt by prisoners generally.  You went into custody, though, in March of this year, just when things were starting to look up in prisons.  No doubt there would have been some worry about catching the virus in such a setting, and no doubt you would have experienced the increased burden posed by quarantine or lockdowns on occasions, including that initial 14 day quarantine I was told about.  Also the absence of in-person visits perhaps for some of that period since then, as well as lack of access to the full range of courses and programs from time to time.

76But things have looked up in the prisons since March of this year.

77What lies ahead in the future on the COVID front for prisoners is impossible for me to determine.  I am not free to guess about that.  Those whose job it is to run the prisons will be in a much better position to assess the true impact.  They will be able to reflect on the actual impact of any past and ongoing limitations on a case-by-case basis.  They will have the power to address any actual increased burden in your case by way of conferring emergency management days in relation to the lengthy sentence I am about to impose.  I cannot know if that will take place and I make it clear that I certainly do not proceed on the assumption that it will.  To take it into account in that way would be to contemplate future executive action. Well, that is prohibited.

78I think it is likely that prisoners may yet have some issues thrown up by
COVID-19 in the coming handful of months.  Case numbers are seemingly on the march again.  There are still some lockdowns and the uncertainty that they cause to prisoners will persist, but it really would be quite wrong for me to conclude at this point that your sentence as a whole will be served under more onerous conditions.  That strikes me as entirely unlikely given the dimensions of the sentence demanded in this case.  Your counsel withdrew the submission at page 8 paragraph (c)(iii).

79There have been the issues to date, which I do take into account, and there are some uncertainties in the short term ahead, which likewise I factor in, but beyond that it is pure speculation.  The authorities will be in a much better position to assess the actual impacts which lie ahead.  I take into account the increased burden imposed by the response to COVID-19 in the manner that I have described.  So that which has arisen in the past and that which lies ahead.

Extra Curial

80Your counsel had, in her written submissions, advanced a submission as to what she argued was the extra curial punishment represented by the likely loss of your house.  In fact I query if it is even truly an extra curial punishment which is defined in Fox and Freiberg’s authoritative work as, ‘Loss or detriment imposed on an offender by persons other than the sentencing Court for the purposes of punishing the offender for his offence or at least by reason of the offender having committed the offence’.  In any event, how the matter is labelled is not the critical issue.

81There are some indirect consequences of conviction which are on occasion taken into account, such as loss of or disbarment from employment or loss of a pension or cancellation of, or suspension of, trading or other licences.  Sometimes physical injuries are sustained by an offender in the commission of the crime.   I asked Ms Dulcie if she could take me to any authority which would support the view that the loss or potential loss of a house should be taken into account in mitigation of sentence.  She could not.

82It would be quite extraordinary and quite wrong for any mitigatory weight to be given to this sort of matter in this case for a number of reasons.  Firstly, the inability to service a mortgage is hardly an unusual consequence of a person being imprisoned.  Secondly, what is the loss?  This argument was not proceeding as suggesting that there was any increased hardship in your custodial burden arising from this.  That was explicitly disavowed.  Rather, as a consequence of the lengthy sentence you are likely to receive for your serious offending, the argument was you would not be able to make the mortgage payments and you would lose your house, and in that sense, lose a significant asset that you had worked hard to own.  I was told that you had bought the house in either 2015 or 2016 for $375,000 with $75,000 equity at that point.  No doubt it has risen in value.  No doubt you are going to prison for many years, and it is possible, maybe it is even probable, that you will not be able to service the mortgage even if paying tenants had been installed.  If so, the house would need to be sold.  If it is, well, the mortgage would be discharged and whatever proceeds result from the sale would presumably be credited to your account.  You will not have not lost the asset represented by your equity and your equity will be sizeable enough, unless things have changed.  There is nothing in this point at all and your counsel ultimately accepted that was so.  I do not doubt you will feel sad to lose your house.  I do not ignore that fact, but it is just not a matter of any real mitigatory value at all in this case.  It is the inescapable and all too common consequence of committing a serious crime which warrants a significant term of imprisonment.

Mr Candlish and Verdins

83I have mentioned on a number of occasions the report of the psychologist,
Mr Candlish.  He was called on the plea.  He made it clear both in his report and in the evidence that he gave that he had concerns about the validity of some of the test results, particularity the PAI, which strongly indicated that you had not attended appropriately in responding to the PAI items.  There were many possible reasons for that, including lack of attention or care in responding, a language issue, or confusion, or failure to follow instructions or, for that matter, a deliberate endeavour to misstate the true position.  Whatever the cause, the result of that test was invalid and had to be put aside.  The TSI results revealed a significant elevation, which could reflect a tendency to over endorse trauma symptoms or could be due to random responding or very high levels of stress.  Those results were difficult to interpret owing to these elevated levels and they had to be looked at with some degree of caution, but they were not invalid.  He made it plain, though, that his ultimate diagnosis was not dependent upon the tests administered or the results obtained from them.  He commented on your seeming preparedness for exaggeration or impression management.  I have already mentioned this when I dealt with the Bugmy submissions.  It is plain that he acted on your self-report of your background and of the so-called triggers for this offending.  I am not going to set out slabs of the report or his evidence before me.  It certainly provides a useful repository of information about your personal background.  There is also some useful consideration of your level of risk.  As I said earlier, it is far from illusory.  You are a moderate to high risk of further violence and he posits the sorts of settings where that may arise.  He sets out all the many things that need to be done to reduce your level of risk.  

84Now, the application of the principles from Verdins is not dependent upon a particular diagnostic label.

85He was of the view that you meet the criteria for a mild personality disorder with prominent features of detachment, disinhibition and dissociality.  You met the criteria for stimulant use disorder (severe) and alcohol use disorder (severe).  You have a vulnerability towards substance abuse relapse, and relapse plainly increases your risk of violence.  You also met the criteria for persistent depressive disorder (mild).  You had symptoms of developmental trauma but you did not meet the criteria for diagnosis of PTSD.  Now, it seemed to me in   cross-examination that the prosecutor, Mr McCarthy, set about perhaps to challenge at least the diagnosis of the mild personality disorder.  However, ultimately having considered all the evidence before me, I am satisfied to the required degree of the diagnostic opinions set out by Mr Candlish.  He sets out various risk scenarios at paragraph 87 to 92 and is of the view that relapse to substance abuse and the formation of an intimate relationship would increase the level of risk.  You display a number of high-risk relevant factors and a low level of protection.  As I say, you fall into the moderate/high risk category for violence of the nature set out in those scenarios.  See paragraph 96.  Your interview with the psychologist discloses that you seem to have some really quite strange and distorted attitudes towards the role of women and your entitlements in a relationship.  See paragraph 107 and 101.  Some of these things he says reflect your socialisation.  Others, he says, are more culturally bound.  He believes that in offending in the way that you did you sought to exact revenge for, 'perceived', wrongs.  He believes you were aware that your behaviour was wrong and that you were disinhibited by alcohol.  Use of alcohol, is in no way mitigatory in this case.

86This report and the evidence was being relied upon to enliven one of the principles from the well-known decision of Verdins.[11]  It was not being submitted that these conditions as were spoken of in any way reduced your culpability or in any way reduced the need for general or specific deterrence.  Your counsel was quite explicit in that regard.  Rather, it was the fifth limb only of that case dealing with your custodial burden.  There was some discussion in the course of his evidence, and I posed some questions to the expert myself, and raised some matters with your own counsel.  I was doing that really to be fair to you and to her, as it was apparent to me that she was about to end her examination of the witness and she was still at that point suggesting that the sixth limb from Verdins was engaged.  My provisional view was that the evidence in combination with the written report had not risen to that level.  Rather than remain silent, I raised my then provisional view to give your counsel the chance to elicit further evidence and to make submissions to me.  It seemed silly not to, as the witness was there, and if the sixth limb was to have a role I needed to know.  In any event, she asked those additional questions of the expert and then in the course of discussions she conceded that the sixth limb was not relied upon, as the evidence was not sufficient.  She was right.  Though Mr Candlish expressed his opinion that you would have an increased burden of prison by virtue of these conditions, for a number of reasons including increased stress levels and poor interactions with other prisoners, and some risk of

[11]R v Verdins [2007] VSCA 102; 16 VR 269; 169 A Crim R 581 (“Verdins”)

self-damaging behaviour, he did not speak of any sizeable risk of serious deterioration in your conditions at all.  It did not seem to me that ultimately the Crown challenged the application to some extent of the fifth limb of Verdins. Having considered all of the evidence before me, I am satisfied the fifth limb does have some application here.  I am satisfied on the balance of probabilities that there will likely be some increased or additional custodial burden presented by your mental health issues.  It is not a large matter but I make some modest allowance for it.

General

87I turn now then to make some general remarks.  I must take into account a large range of matters including the maximum penalty, the gravity of the offending, as well as the impact of the crimes.

88I am required also to take into account current sentencing practices.  Current sentencing practices are not a controlling factor.

89I have looked at a variety of materials, including the Sentencing Advisory Council Snapshot No.263 for intentionally causing serious injury, and No.266 for recklessly causing injury, as well as the more up to date online statistics for those two offences.

90I have also looked at the Judicial College of Victoria sentencing case collection for these two crimes.

91As is often the case, I really was not greatly assisted by looking at other cases. I note the Court of Appeal in the case of Lukudu[12] endorsed that sentiment.  

[12]Lukudu v The Queen [2019] VSCA 248 at [47]

92The case of Packard[13] to which I was referred, had so many differences as to be of no use to me at all.  A person of good character with no violence history, with excellent rehabilitative prospects, one who had been forgiven by his wife, an offender who had himself called the ambulance and who was genuinely remorseful, who had acted without any premeditation and in a setting where there had been a complete recovery.  In that case, which was only a leave application, the single judge, in refusing that leave application, spelt out the particular leniency of the sentence.  It plainly was not a comparable case.  It really was like comparing apples and oranges.  Nash[14] was a far more useful case.  It was referred to in Lukudu.  It reviewed a number of examples of sentences previously imposed.  It also set out some statements of principle, and matters of principle are far more useful than just the bare numbers represented by another example of a sentence imposed by another judge for another crime.  Some of those same principles were restated in Lukudu and also in the case of Evans, which was also referred to in Lukudu.

[13]Packard v R [2021] VSSA 56

[14]Nash v R (2013) VR 134

93So those cases of Nash, Lukudu and Evans[15] speak of the importance of general deterrence and the reality of sentences in the high single figures and into double figures for some instances of this crime.

[15]DPP v Evans [2019] VSCA 239

94Priest JA said at paragraph 55 of Nash that the circumstances of the commission of this offence are almost infinitely variable and therefore the sentences imposed vary widely.  He said there were some cases involving protracted savagery, whilst others were constituted by a single punch.  Some involved a variety of weapons.  Further, that the injuries widely varied from permanently disabling injuries to others that barely crossed the threshold of serious injury.

95I have mentioned the statistics.  They reflect a spread of sentences as one would expect given the variations of the offence conduct and impact spoken of by Priest JA.  There are sentences from between one to two years up to above 13 years.

96Statistics have inherent limitations.  They are numbers on a page and they are silent as to all of the many features of aggravation or mitigation which would explain a particular sentencing outcome.

97Other cases also have limitations.  They are not precedents to be followed unless somehow distinguished.  There are always differences in the circumstances of the offence and the offender, as the case of Packard displays.

98There is no such thing as one correct sentence either.

99I note that the sentences have increased for this crime.  See the case of Lukudu at paragraph 46. Some of the statistics bear that out as well.

100My task is to pass an appropriate sentence in your case.

101That outcome will not be driven by what has happened in other cases, or by what the statistics might disclose.  I am not engaged in a mathematical or statistical task.  I am a judge exercising a sentencing discretion.

102As to the attack on Ms Malith, it is my view that it represents a grave example of the offence of intentionally causing serious injury.  It is that simple, and that is not disputed by your counsel.  Within the wide scope of offending contemplated by intentionally causing serious injury, the intentional infliction of serious injury by the stabbing of an entirely innocent victim to the abdomen is plainly very serious.  The use of a knife carries with it the high risk of serious injury to vital internal organs and blood supply, see Lukudu at [36], and that is just the act. The setting here was of the breakdown of an intimate relationship and your seeking revenge for next to nothing, even on your own account.

103It is plain from your discussions with the psychologist that you were seeking her out on this day.  The summary spells that out as well with the attendance at her house and the request to her mother, telling her that there were things that you needed to discuss with the daughter.  So too in your discussions with
Mr Candlish.  See paragraphs 9 to 13.  You said she had not returned your calls and you told Candlish that, 'She promised to come back'.  See paragraph 9. You told Candlish that you had been drinking and knew that she would be at the hotel, and contacted your friend to drive you there.  This was not some chance meeting.  You had been seeking her out and you continued to do so. Being driven there in your car required someone else to actually defeat the interlock device.  You were not going to the hotel for a quiet drink.  You hoped to catch up with Ms Malith.  Indeed, we know what time you arrived and we know what time this event took place.  It was a handful of minutes later.  You describe seeing her on another man’s lap and told Mr Candlish, 'My anger and alcohol took over'.  There is no evidence before me that any such thing took place at all other than your account of it in the conference with Mr Candlish, but even if it did, so what?

104You approached her in the smoker’s area and asked her to come home and she refused.  I have no doubt at all that at that stage you were angry and resentful.  She went to the gambling area.  You followed.  She left that area, you followed close behind.  It can be seen in the footage.  I have already dealt with that footage and what it discloses; you are pulling the knife out as she was approaching your own friend.  There was no question of any trigger at all posed by any ‘over familiar’ behaviour on her part.  That is just not what happened.  The timing of the production of the knife does not lie.  You told Mr Candlish that you had the knife in your car for protection.  Unsurprisingly, he asked you why it was taken into the venue and you could not answer that question.  You described to him seeing her with another man and thinking, 'Strike 1, strike 2'.  You told him that you felt used and hurt.  See paragraph 12.  These descriptions connote a process of thinking through options.  I have no doubt at all that this was a premeditated act to some extent.  I am not saying I can find to the required degree that everything was mapped out in advance and that you had some crystal clear plan of action.  I am certainly not satisfied beyond reasonable doubt that you have entered that club intending to stab her in the way that you did or in any way for that matter, but I have no doubt that you entered with some confrontation in mind.  No doubt at all.  You wanted to speak to her about the relationship.  I cannot find to the required degree that you have actually taken the knife with you for that purpose.  I have no doubt at all, though, that you were seeking her out to confront her.  You then determined to use the knife that you had with you to exact revenge.  I am satisfied of that beyond reasonable doubt.  So within the club there was obviously some premeditation.  As I say, the footage is very clear as to when that knife was produced from your clothes.  You had attitudes of entitlement and a desire to control your ex-partner.  They are Mr Candlish’s words, not mine, but I accept his opinion, as well as his opinion that there was mix of alcohol and mood instability and a desire to exact revenge for perceived wrongs.

105You worked as a butcher and were familiar with blades.  You attacked a defenceless woman in a crowded public venue with a boning knife without giving any hint of warning, and you directed three strikes of the blade at her.  The first to her back.  She was totally unprepared for any violence at all.  It was Mr Kur who wore the second of the blows on his left arm, and the second blow to Ms Malith, the third use of the knife by you, targeted a vital area and could so easily have killed her.  The footage discloses the level of force employed.  It was not a slash or a wipe.  It placed her life at grave risk.  Without prompt medical attention she would certainly have died and she would have added to the unenviable statistics in this State of women who die at the hands of their former intimate partners.

106The impact has been sizeable obviously enough.  Your culpability was high.   Your act was totally unprovoked and totally unexpected.  The footage also shows the manner in which you replaced the weapon from whence you had removed it and calmly walked from the venue, only to dispose of the weapon nearby.  You knew exactly what you were doing and how serious it was.

107I have to take into account the various purposes of sentencing.

108Rehabilitation is one of the purposes and I must pay regard to that.  I do not ignore that purpose.  You have some prospects of rehabilitation, but they are not particularly strong and of course this is not the only purpose of sentencing.  Given the seriousness of your offending, rehabilitation must surrender some  significant ground to the other purposes of sentencing including denunciation, deterrence, community protection and punishment.

109Punishment is an important sentencing purpose.  That is conceded.  You must be punished for your crimes, justly and proportionately.

110I must also denounce your conduct.  Again, that is an important purpose of sentencing as well for crimes as serious as these.  This was extraordinarily dangerous behaviour in a public place, targeting a young woman.

111Community protection is obviously an important purpose of sentencing here.  As I have said already, this was startling offending.  Mr Kur got in your way, trying to protect a vulnerable female, and Ms Malith came very close to losing her life to a completely unjustified and unprovoked attack with a knife in a public place.

112Being affected by alcohol or drugs is not in any way mitigatory.  Nor being angry or feeling hurt or jealous or used.  They are not matters in mitigation.

113Then there is deterrence.  Specific deterrence is a matter of real importance here.  This concept relates to the need to deter or dissuade you from offending.  You must be deterred from offending in the future.  Though you have only a short history before the Courts, Courts have tried to deter you in the past and we have not succeeded.  You have breached intervention orders.  There was a short sojourn in prison and that did not deter you.  You have some distorted views about your entitlements in a relationship.  You have assaulted an intimate female partner in the past more than once.  You need to get it into your head that your intimate partner has rights.  You do not have entitlements to possess or control or act out violently.  You must not act out of anger or jealousy.  Plainly, you must be deterred.  You must never act in this way ever again.

114The principle of general deterrence relates to the need to deter other future potential offenders.  It is an important sentencing purpose for these crimes, particularly the intentionally causing serious injury.  The Courts have a role in deterring other people in the community who might be minded to commit this type of serious offence of violence as represented by the intentionally causing serious injury that I am dealing with.  We are sick of those who think it is open and appropriate to seriously assault their intimate partners or former partners. It is not.  The use of a weapon raises the stakes very significantly.  The message must be sent loud and clear to likeminded, potential offenders that this sort of serious crime of violence will be met with very strong punishment.  Some of the case law is referred to in the Prosecution written submission.  I could select any number of other cases from our highest court detailing the importance of general deterrence in the setting of intimate partner violence, especially violence at this level.  It will simply not be tolerated and that message must be sent out to other likeminded future potential offenders.  I do not accept the submission that you are an inappropriate vehicle for general deterrence.  Very many of the people who commit crimes such as these have distorted views as to relationship entitlements or have problems with anger or self-control or jealousy.  Very many of them have unenviable personal backgrounds of some disadvantage.  To substantially reduce the weight given to general deterrence would be quite wrong.  You knew exactly what you were doing.  You knew how wrong it was.  There is a coldness and callousness to your conduct disclosed in the footage and in the disposal of the weapon.  General deterrence is very important here.

115I have to pay regard to the gravity of the offences before the court.  I have spoken already of the seriousness of the major offence being the offence of intentionally causing serious injury.  I have barely mentioned the recklessly causing injury.  That is a serious offence in its own right.  ‘Injury’ can embrace a very minor example of injury, even something not requiring any medical attention at all.  As 'injuries' go, this one to Mr Kur involved a deep and severe wound requiring surgical repair of the many damaged tendons and underlying structures to try to restore the movement to his arm and hand.  There was a hospital stay.  That victim was stabbed as he tried to avert catastrophe befalling Ms Malith.

116As to the intentionally causing serious injury, one can almost always hypothesise a more extreme or serious example of any crime but that is certainly not the best way to assess the gravity of the offence before the Court, especially where the matter before the Court has so many features of aggravation as this instance of intentionally causing serious injury plainly does. 

117Intentionally causing serious injury is an inherently serious crime with a maximum prison term of 20 years.

118Serious injury is defined as, 'Injury including the cumulative effect of more than one injury that endangers life or is substantial and protracted’.  Well, both limbs are amply satisfied here.  Your victim was left in a critical condition.  She had life threatening injuries and she would certainly have died but for the treatment obtained at the scene and at hospital.  Very luckily for her and very luckily for you, she survived.  However, she has survived and she was left with a stoma when she was discharged from hospital. I cannot find that that is a permanent state of affairs given the evidence before me.  I have spoken already in these reasons of the unsatisfactory nature of the medical evidence and the chronology of attempts made to contact Ms Malith but, plainly enough, she was discharged with a stoma in place.  Plainly enough, there was true lifesaving surgery that was attended to in hospital.  The risks to her are spoken of in the report before me in the depositions from Dr Shreiber and, on any view of it, the best case scenario was that there would be a reversal of the stoma, which itself would require surgery.

119So these were no minor consequences on any view and the outpatient review for consideration of the stoma revision was two to three months after her discharge.  There is no question but that she was facing a long road ahead.

120As I said a moment ago, when dealing with the wide variation of offences captured by the crime of intentionally causing serious injury, some can be caused by a single punch.  Some might have injuries which barely cross the threshold of the definition of serious injury.  That is not what I am dealing with.  I am dealing with two knife wounds, including one to a vital area, committed upon your unarmed ex-intimate partner, at night, in a crowded public place with not the slightest hint of any warning.

121Critical injuries resulted, and unlike a single punch where there can actually sometimes be a disconnect between the injuries intended and those actually produced, that cannot be said for you here.  A butcher using his boning knife to forcefully stab a woman in the abdomen.  There was no disconnect at all between the mechanism that you used and the actual serious injuries caused.  Your victim did not, for instance, fall to the ground and sustain a serious injury in that way.

122Yours was a deliberate armed attack committed out of the blue and without warning, and I am satisfied beyond reasonable doubt that you intended to cause really serious injuries.

123The Court of Appeal in Lukudu spoke of the use of a weapon and the context of the offence and the severity of injuries.  See paragraphs 35 to 40, and
also 46.

124I have said already, her injuries would have proved fatal but for the prompt attention at the scene and at hospital.

125Sometimes we as judges deal with cases where there has been a life threatening injury caused by a single punch but where there has been a complete and uneventful recovery with little ongoing impact.  That is not what I am dealing with here.

126We see from time-to-time injuries that might be judged to be more catastrophic than these in terms of their ultimate residual effect physically.  So things that are, to quote from Lukudu, 'entirely irremediable'.  See paragraph 40.  For instance, there is often reference to brain injury or paraplegia.  I am not, as far as I can determine on the materials, dealing with those sorts of totally irremediable impacts in this case, but the impacts here have been large.  For a 21-year-old woman to emerge from hospital after that life-saving surgery with bowel damage and a stoma bag, even for a limited period, is a confronting thing indeed, and the ongoing risks and the need spoken of in that in report for further surgery.  The second limb of the definition of serious injury is also made out and that was conceded on the materials before me on that last date.

127Very luckily, Ms Malith survived, but these serious injuries were of a very high level, involving crucial organ damage, and could so easily have proved fatal, and the mechanism, an armed attack with multiple stabs in a crowded public venue was simply extreme.  All of that in the setting of intimate partner violence arising out of revenge for what seemed to me to be illusory perceived wrongs, and committed by someone with previous conduct targeting another intimate partner.  This example of intentionally causing serious injury, represents a grave example of this offence.  Your counsel accepted that was so.

Totality

128I pay regard to the principle of totality of sentence.  The intentionally causing serious injury is, of course, the most serious of the crimes by far.  There is the overlap with the recklessly causing injury occurring amidst the attack upon
Ms Malith.  They were obviously intertwined.

129That crime of the recklessly causing injury, involved a totally different victim, and so it has had quite separate impact.  It was a separate injury and it was no minor one at that.  That was a serious crime worthy of quite separate recognition.  The need for sizable cumulation is clear enough.  The
Control of Weapons Act offence relates to the knife that was wielded, and I believe there is a sensible basis for complete concurrency in relation to that matter.  All of this occurred whilst you were on bail, and I have the relevant statutory  provisions in the Sentencing Act to deal with.  However, I have treated your being on bail as a matter of aggravation, and for that reason I will not cumulate that sentence.

130The court must not pass sentences which are more severe than that which are necessary to achieve the various purposes of sentencing.  I must consider whether the sentences and the effect of them is commensurate with your overall criminality.  I am conscious of the need to avoid a crushing outcome upon you.   I have taken a last look the sentences and their overall effect.  The fact remains, though, that your criminality was very high.  There is no major reduction in your culpability as there sometimes is, arising, for instance, where there is youth or some mental health consideration in play.  There is nothing like that here. I have only some modest reduction owing to my Bugmy allowance that I have spoken of in detail earlier in these reasons.  You were however a mature offender, committing objectively serious crimes involving these multiple victims and, regrettably, a very substantial prison sentence is the only proper response available to the court.  The maximum penalty for intentionally causing serious injury is, as I have said, 20 years' imprisonment.

Forfeiture

131There is application for forfeiture of the knife.  That application is not opposed.  It is brought pursuant to the provisions of s78 of the Confiscations Act and I have signed that order because I am satisfied that those relevant provisions are made out.  I order, pursuant to that provision, the forfeiture to the State of the property referred to in the schedule.  I direct that it be managed and handled in the way contemplated by the signed order.  I will have you remain seated there, please.  I am sorry that I have taken so long to get to this point.

Sentence

132On Charge 1, which is the charge of intentionally causing serious injury to
Ms Malith, I convict and sentence you to 11 years' imprisonment.  That will be the base sentence.

133On Charge 2, recklessly causing injury, I convict and sentence you to
two and a half years' imprisonment.

Summary Offence

134On the summary offence of committing an indictable offence whilst on bail, I convict and sentence you to seven days' imprisonment.  As I have viewed it as a feature of aggravation that you were on bail at the time of the major offences, I do not believe it is appropriate to cumulate that seven days or make orders for cumulation beyond those which I will announce shortly.  That would involve an aspect of double punishment, and I otherwise direct under s16(3C).  For the   control of weapons offence I convict and sentence you to three days' imprisonment.  Again, that will be served concurrently.

Cumulation

135The base sentence therefore is the 11 years that I have imposed on Charge 1.  I direct that 12 months of the sentence imposed on Charge 2 is to be served cumulatively upon the base sentence.  As I have said, the sentences imposed on the two summary offences will be served concurrently with all other sentences.

Total Effective Sentence

136Those orders then result in a total effective sentence of 12 years' imprisonment.

Non-Parole Period

137I must fix a non-parole period.  I can make no assumptions as to whether you will be released on parole and in fact I am prohibited from speculating on that issue at all.  That will be entirely in the hands of the Adult Parole Board. 

138I fix a period of eight and a half years during which you will not be eligible for release on parole.

Section 18 Pre-Sentence Detention

139I make the pre-sentence detention 259 days; is that right or not?

140MR McCARTHY:  Two hundred and fifty-nine days is correct, Your Honour, yes, agreed.

141HIS HONOUR:   You have already been in custody for a period of
259 days and that period is taken into account.  You will get credit for that and so that s18 declaration is to be entered into the records of the court.

Section 6AAA

142Finally, I have told you I have taken into account your guilty plea.  If you had pleaded not guilty and had been found guilty of these offences by a jury, I would have sent you to prison for 14 and a half years.  I would have fixed a non-parole period of 11 years in that setting, and that declaration likewise is to be entered into the records of the court.

143Let me just see if there is anything else that needs to be done.  Any other matters from your perspective, Mr McCarthy?

144MR McCARTHY:  No, Your Honour.

145HIS HONOUR:  From yours, Mr Brown?

146MR BROWN:  No, thank you, Your Honour.

147HIS HONOUR:  Presumably you will have to be making arrangements to have a video conference will Mr Dhal in due course?

148MR BROWN:  Yes, there will be arrangements made for one of those in the coming days.

149HIS HONOUR:  So I will sign those orders when they are presented for signature.  That completes the matter then, Mr Dhal, and your legal team will be in touch with a video conference to discuss what has occurred here today and your rights in relation to this sentence, but that otherwise completes the matter. 

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