Director of Public Prosecutions v Jal

[2018] VCC 271

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-16-01928

DIRECTOR OF PUBLIC PROSECUTIONS

v

JOHN JAL
JAMES JAL

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JUDGE:	HIS HONOUR JUDGE BOURKE
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	9 March 2018
CASE MAY BE CITED AS:	DPP v Jal
MEDIUM NEUTRAL CITATION:	[2018] VCC 271

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms M. Bossio
For Accused Jal	Mr E. Cinar
For Accused Jal	Mr E. Cinar

HIS HONOUR:        

1John Jal, you are to be sentenced for one charge of intentionally causing serious injury. 

2James Gatauk-Jal, you are to be sentenced for one charge of recklessly causing serious injury. 

3You are both to be sentenced for the offence of affray. 

4Respective maximum sentences are 25 years' imprisonment and 20 years' imprisonment for intentionally and recklessly causing serious injury; and five years' imprisonment for affray.

5You pleaded guilty before me on 15 December 2017. When interviewed by police on 22 December 2015, essentially you denied the offending. The matter ultimately came on for trial before me in September 2017. There were a number of mention hearings. Through counsel, who represented both of you, you requested a sentencing indication under s.207 of the Sentencing Act. Section 207 states as follows:

"At any time after the indictment is filed, the court may indicate that                 if the accused pleads guilty to the charge on the indictment at that                   time or another charge, the court would or would not, as the case                 may be, be likely to impose on the accused, a sentence of   imprisonment that commences immediately."

6The Crown consented to me giving such an indication. 

7That hearing ran on 23 October and was adjourned for further hearing on
9 November.  After very anxious consideration, in part evidenced by the number of times this matter has returned to court, I decided that I should indicate that
I was not likely to immediately imprison you.  I gave that indication on
8 December. 

8On 15 December you entered pleas of guilty to these charges. 

9As things developed during the s.207 hearings, questions were raised including as to the requisite state of mind for you, James Jal, on your complicity in the serious injury charge. You had, at that stage, been charged with intentionally causing serious injury. Arising out of this, the Crown indicated that the charge against you would or should be reduced to recklessly causing serious injury. I gave my sentencing indication on 8 December on that basis. On 15 December, another indictment was filed over, to which you both pleaded guilty.

10You both receive the benefit of your pleas of guilty in the circumstances of that history of the proceedings. Particularly the interests of justice have been facilitated by those pleas.   There are a number of proceedings arising out of the events related to this offending.  A large number of other accused face charges in the Magistrates' Court.  In the hearings before me since September, I was informed of matters both in the committal and summary streams of that court.  I have been told at you plea hearing that all matters have now resolved. 

11In my view, contested hearings in the Magistrates' Court and trials in this court, including yours, would have been difficult, lengthy and expensive.  It should also be said that, in my view, your pleas to these charges  (I speak particularly of the serious injury offences) could not be seen as being made in the face of strong, overwhelming cases against you.  As raised by me in the 2017 sentence indication hearing, in this case there arose difficult, interconnected issues related to self-defence, complicity and the requisite states of mind as to causing serious injury. 

12Relevant evidence was tendered at the sentence indication hearing on
23 October and 9 November and by agreement adopted again at the plea hearing on 26 January.  I was a little unsure of that date.  Is that correct?  We can correct it at the end, if you ‑ ‑ ‑

13MS BOSSIO:  Yes, Your Honour.

14HIS HONOUR:  Ms Bossio, for the Crown, tendered a written Crown opening.  She provided the criminal record of Awer Ater.  He is also charged in related proceedings.  Mr Cinar, representing both of you, tendered the two reports of your treating psychologist, Penelope Karvelis. 

15Ms Bossio provided police summaries about other offending and offenders on 20 December 2015, the day of these matters before me and also about events of late August 2014  in which your brother, Maker  Gatlauk-Jal,  was attacked and seriously injured.  These are part of a background giving some context to these present offences.  However, I have borne in mind that these summaries remain as untested evidence.  I have been careful to focus primarily upon the evidence describing the offences committed by you on 20 December 2015 and for which I sentence you.

16In coming to findings on the circumstances of them, I have also considered submissions by counsel, particularly including certain concessions by the Crown.  I have attempted to apply the principles stated in such cases as
R v Storey, on finding of relevant facts in a plea hearing. 

17On that basis, I find as follows.

18On 15 December 2015, both of you and others, including your brother, Marco Jal - I hope I have pronounced that correctly.  Makka?  Marker?  Do we know?

19MR CINAR:  I think it's Maker Jal, Your Honour.

20HIS HONOUR:  Thank you…   attended the South Sudanese - I will read that again to give it better sense.  On 15 December 2015, both of you and others, including your brother, Maker Jal, attended the South Sudanese basketball tournament at Frankston Basketball Stadium.  It is not suggested that this was anything but a positive, law-abiding sporting and cultural event.  I accept that your attendance was consistent with that.  A younger brother played in the tournament. 

21You and others were standing at the stadium entrance.  At about 4.30 pm, you and others were standing at the stadium entrance when 20 to 25 men arrived in four vehicles.  They were armed with weapons, including a machete.  As eluded to earlier, in August 2014, Maker Jal  (your brother) and others were attacked.  He received serious arm injuries, caused by a machete.  I was told that no charges were laid for that and I make no findings on it.  However, you were of the view that your brother was so attacked by men some of whom were in the group who arrived armed at the stadium in December 2015.  A man named Awer Ater was one of them.  You and others armed yourselves.  You both obtained a knife from a nearby car. 

22The Crown concedes that you acted originally in self-defence.  The concession, as I understand, is that the basis of your offending is, to use the older phrase and in fact the term used by me in the plea hearing, "disproportionate self-defence". 

23This requires some analysis in terms of the now legislated test for that. It is set out at s.322K of the Crimes Act and applies to these offences committed in December 2015. 

24I find that you were acting in self-defence when you armed yourselves.  I find therefore that you believed your conduct was necessary in self-defence;  that is, it was necessary to do what you did to defend yourselves.   Matters that would support this include the sudden arrival of the armed group, men of much larger numbers than you and those with you, and also what had happened to your brother in 2014. 

25At a point prior to the serious injury you inflicted on Awer Ater, you were no longer acting in lawful self-defence. 

26Ater and the people with him approached where you were at the stadium entrance.  A fight began.  I accept that this developed very quickly and that you were outnumbered.  This part of Awer Ater's depositional statement is quoted at paragraph 7 of the Crown opening. 

"John swung a punch at me and I swung back.  I then jumped on                  him, taking him to the ground.  I was on top of him on the ground   when he swung at me with his right hand, hitting me under my left                    armpit with two blows, which caused pain.  I thought they were   punches at this stage.  As I was getting up, I saw that he was holding        a knife.  I would describe the knife as a black-handled hunting knife,                 with a five centimetre blade.  As I was getting up, James hit me in   the head with the knife."

27John Jal, in such circumstances and in the prior circumstances, I have found that you stabbed Awer Ater twice.  Although able to join pursuit of you and other in the immediate aftermath, he collapsed, seriously injured, and was hospitalised.  Paragraph 10 of the Crown opening includes this description of his injuries.

·"Non-penetrating wound to the left side of the scalp;

·Two penetrative wounds to the left side of the trunk;

·CT scan revealed intraabdominal free fluid surrounding the spleen and liver;

·Further fluids seen surrounding some of the small bowel loops in the left upper abdomen. 

·There was also a minor laceration to the lower pole of the spleen;

·Admitted to surgery, where 1.5 litres of blood was found in the abdominal cavity and pelvis. 

·The operation report described a left diaphragmatic tear; a splenic laceration; arterial injury to part of the large intestine; and four proximal duodenal perforations to the part of the small intestine;

·Admitted into ICU for two days post-operation and discharged on 26 December 2015; 

·Ater was reviewed on 6 January 2016 and was reportedly continuing to recover, with minimal pain and his wounds were recorded to be healing well."

28I was told that he has made a full recovery.  No victim impact statement has been tendered. 

29James Jal, you caused directly only the minor injury to Awer Ater's scalp. 

30John Jal, you also suffered injury, most significantly a cut and fracture to the left elbow.  You have stated that you were struck with a machete. 

31Findings as to at what point and/or in what way you were no longer acting in self-defence are difficult.  I have decided that you are to be sentenced on the following basis. 

32You came to an agreement, better put as an understanding between you, that you would assault and stab Awer Ater;

33You, John Jal, intended to seriously injure him in some way.  You, James Jal, saw that as probable;

34This understanding was very quickly formed and in the prior circumstances of threat I have found.

·What you did, pursuant to it, was not a reasonable response to those circumstances, even as you saw them.

·The offence of affray, although it entails different considerations, particularly for example focussing upon the public nature of the violence that developed, must be seen in the same context.  That is, of original self-defence;  but action disproportionate to or beyond it.  The Crown concedes this. 

35John Jal, you are now 30 years of age.  James Jal, you are 27.  You were 27 and 24 at the time of offending.  You are brothers in a family of seven children.  Both of you live in the family home with your mother and a number of siblings.  The family suffered and then fled the South Sudan civil war to a refugee camp in Egypt.  You were 14 and 11.  You came to Australia in late-2005 under the refugee program.  Your father was seriously ill with kidney disease and in fact died within days of coming here. 

36You, John Jal, took on the burden of eldest son.  You spoke no English and encountered a number of difficulties.  However, in many ways, you have done well here.    You studied English and ultimately completed your VCE in 2009.  You entered a business management degree course at RMIT University.  In December 2015, you completed a Master's Degree in Commerce.  You worked throughout this as a bar attendant at Crown Casino.  You had worked part-time during secondary school.  In 2015 to 2017, you were able to meet requirements as to  income and savings to sponsor your older sister and her family to come here.  You have continued to assist them after their arrival in 2017.  You presently own and run a café restaurant. 

37James Jal, you also studied the English language when you first came to Australia.  You were able to complete Year 11 at school. You began work and then an apprenticeship as a mechanic.  You completed that and rose to manage that business.  You now own your own business, employing a full-time mechanic and an apprentice.  You are in a long-term relationship.  Your partner works
full-time as a nurse.  Throughout, you have assisted the income of your family. 

38John Jal, at 30 years, you have no criminal record. 

39James Jal, you have one prior offending episode.  A criminal record filed with the indictment states that,  in January 2015, you were sentenced to six months' imprisonment for affray, criminal damage and possessing a controlled weapon and dangerous article.  On appeal in July of that year you were not convicted and the court imposed a community corrections order of 15 months' duration, with 150 hours of community work and rehabilitation conditions, including assessment and treatment for alcohol abuse.  One of the summaries provided by Ms Bossio seeks to describe the relevant series of events.  Your offending occurred in late-August 2014 in the early hours of the day following the attack upon your brother, to which I have referred.  I note  my earlier remarks about the relatively untested nature of matters stated in the summaries provided.  However, it seems more than likely that your offending was in reprisal for the attack upon your brother and I would surmise that you had been drinking.  There were co-offenders.  You, John Jal, were not among them.  I avoid further speculation. 

40A Community Corrections progress report, dated 27 September 2017, was provided to me.  You successfully completed the order in what is described as an overall satisfactory way.  It is a matter adverse to you,   and disturbing,  that this offending before me occurred during the course of that community corrections order.  As at September 2017, Community Corrections, as stated in the report, were awaiting the outcome of this proceeding.  It was at that time listed for trial before me.  I presume that there will be breach proceedings and you may face  re-sentence for that 2014 offending. 

41The psychological material tendered, reports by the same treating psychologist, can be seen as compromised in a number of respects.  Ms Karvelis treats both of you and has done so since June 2017.  There exists perhaps a striking similarity in her opinions and diagnoses.  I bear in mind, however, that the principal diagnoses are that of post-traumatic stress disorder, caused by similarly shared and no doubt very damaging experiences when young in South Sudan.  I bear in mind also that these are reports by a treating practitioner.  Your histories to her of the offending circumstances are not consistent with the Crown opening and therefore you pleas.  The reports are dated and were made at a time when your matters were listed for trial and can be seen in that context.  Clearly, you are to be sentenced on the basis of the Crown opening and my earlier findings.  Further the reports, admittedly in the then context of trial, state opinions directed at the likelihood or otherwise of your guilt for these offences.  These are plainly not relevant and I seriously doubt their relevance at trial.

42Ultimately, although mindful and to some extent distracted by these matters,
I have seen no reason to reject the diagnoses of post-traumatic stress disorder.  One could see them as very consistent with youthful experience in chaotic,  
war-torn environments.  I also accept the personal and background circumstances described.  The Crown does not challenge those things and in fact concedes relevance of the so-called Verdins principles. 

43John Jal, you suffer post-traumatic stress disorder, exhibiting not atypical symptoms such as anxiety, heightened vigilance or sense of danger, flashbacks and intrusive dreams.  It is sourced in your early life experience (for example, your family's situation being aggravated by your father's placement in the military) experiences as a refugee in Egypt and your father's death and the traumatic circumstances of it.  It is stated to have been aggravated by the offending episode.  That you are guilty of the offences,  and bearing in mind my earlier findings on self-defence,   does not, in itself, rebut that proposition. 

44Your condition has been untreated for years, in the context of cultural stigma as to mental health treatment and your early assumption of responsibility  as the eldest male in the family.  You are said to be making significant progress in therapy treatment. 

45James Jal, you are diagnosed with post-traumatic stress disorder, with similar, but perhaps not identical symptoms.   The loss of your father in early teenage and in the circumstances of it, within days coming to Australia, has had a particular effect on you including as to your depressive symptoms and sense of vulnerability, abandonment and anger.  You see your brother as a father-figure.

46Ms Karvelis' report also states the benefit of an anger management program undergone within the Community Corrections Order I have spoken of.  It ran - that order ran to October 2016.  As indicated in the Community Corrections report, also referred to earlier, the anger management program ran between January and March 2016.  I note that this was after this present offending. 

47You also continued to have psychological therapy treatment. 

48As I have stated, the Crown concedes the relevance of the Verdins principles.  That includes as to some reduction of your moral culpability.  It can be said that this would more often be found in respect of very debilitating psychiatric, for example, psychotic conditions or disability.  The necessary connection of your condition and its symptoms to this offending is made feasible and, in my view apparent, by the very quick development of your offences and by my earlier findings on self-defence.  A heightened sense of vulnerability, which I accept, plays some significant role in finding that you were originally acting in legitimate self-defence.  It also, or perhaps accordingly, reduces your moral culpability and the criminality of the offences.   Sentencing purposes, such as deterrence, still exist, but are moderated. 

49This was still serious offending, particularly in the circumstances objectively viewed.  There were weapons.  A man was seriously injured.  It was in a very public setting, which it might be said particularly applies to the affray charges.  Despite my findings on self-defence, which stand, there is also an undeniable sense of grievance to what happened.

50You, James Jal, have a very relevant prior offending episode; albeit you were the lesser participant here. 

51The usual sentences would be imprisonment.  However, here, there are also important mitigating and moderating factors which speak against that.  These include the following.

·Your pleas of guilty.    As I have attempted to explain, they should carry particular benefit to you in the sense of facilitating or assisting the interests of justice.

·The particular and unusual circumstances of the offences.  I refer to my earlier findings.  As I have attempted to make clear, there may be a sense of mutual group violence to this case and its background. However, you are also entitled to a consideration of your case on the basis of the proven or accepted evidence about this occasion and individual to you.  For example, John Jal, there is no suggestion, as I see it, that you were involved in the August 2014 matters. 
I have attempted to take care in this regard. 

·Your personal background and circumstances.  That background and its effects have been unusually harsh.  This includes consideration of the Verdins principles in the way I have stated.

·You particularly, John Jal, have no criminal record at 30 years, consistent with good character.  The background material presents you as
a fundamentally pro-social man who should be seen as having good prospects for rehabilitation. 

·James Jal, you have  prior offending, which is a matter adverse to you.  However, the material before me also states admirable aspects.  Both you and your brother have overcome extreme difficulties, including in and upon coming here and have achieved productive lives.  I also see you as having genuine rehabilitation prospects.

·Those assessments about rehabilitation are supported by the time since, now over two years.  You have addressed your mental health conditions and, I was told, there has been no further charge or offending.  You no longer attend such cultural events. 

52I was directed to the well-known case of Boulton, which states that a community corrections order is available in appropriate circumstances, even when sentencing for offences  as serious as this.  That must be seen as rare in cases as serious as here.  However, I see the combination of matters identified here to make this an exceptional case.  As
I have said, I come to that view only after long and anxious consideration. 

53Accordingly, I shall impose Community Corrections Orders on you both.  I have received Community Corrections assessment reports which state you to be suitable for such an order.  The orders will have to contain, as well as rehabilitative conditions, strongly punitive ones including as to duration, to meet the seriousness of offending.  

54John Jal, would you stand please.

55I sentence you as follows:

56On both charges, you are convicted and I impose a community corrections order of four years' duration. 

57The usual terms apply.  The additional conditions are that you perform 450 hours of unpaid work over that time; that there be assessment and treatment for mental health; that there be offence-specific - that you attend programs specific to your offending under s.48D(3)(f); and a condition that there be supervision. 

58Had you not pleaded guilty, I would have imposed a sentence of four years' imprisonment, with a minimum term of two and a half years.

59Sit down please.

60James Jal, on both charges, you are convicted and I impose a community corrections order of three and a half years' duration. 

61The usual terms apply.  The additional conditions are that you perform 400 hours of unpaid community work over that time; that there be assessment and treatment for mental health; that there be - that you attend programs specific to your offending under s.48D(3)(f); that there be supervision.

62Under s.6AAA, I indicate that had you not pleaded guilty, I would have imposed a sentence of three and a half years, with a minimum term of two years.

63Sit down please.

64Now what else need to be done? 

65MS BOSSIO:  That is it, Your Honour.

66HIS HONOUR:  Do you want a - are there no forensic sample ‑ ‑ ‑

67MS BOSSIO:  There were forensic sample orders which were obtained.

68HIS HONOUR:  They were obtained at the time of interview, were they and they've been ‑ ‑ ‑

69MS BOSSIO:  Correct.  And I understand that the retention would be automatic.

70HIS HONOUR:  Yes, good, thank you.  So there is nothing else?  All right, now, we need to prepare - both men can come out of dock and sit near Mr Cinar please.  Yes, we will print those orders out. 

71Would you stand please John Jal.

72I need to read out to you the conditions of the order I have imposed on you.  It is an order that will last for four years.  And you must attend at the Frankston Community Correctional Services office.  The address is here and you will be given a copy of the order.

73The usual terms are these: 

·That you not commit another offence for which you could be imprisoned during the time of the order;

·That you comply with an obligation under a regulation that forbids you or prohibits you from attending any program or appointment, affected by alcohol or drugs, or in possession of illegal drugs. 

·You must report to and receive visits from Community Corrections. 

·As I said, you must report to the relevant Community Corrections Centre within two days. 

·You must let Community Corrections know within two clear working days of a change of address or job. 

·You must not leave Victoria without first getting permission to do so from Community Corrections. 

·You must obey all lawful instructions by Community Corrections.

74The additional conditions are that:

·You perform 450 hours of unpaid works over that period of four years; 

·You must be under supervision. 

·You must undergo mental health assessment and treatment, as directed. 

·You must participate in programs addressing this specific offending. 

75Now do you understand all of that? 

76OFFENDER JOHN JAL:  Yes, Your Honour.

77HIS HONOUR:  And do you agree to it?

78OFFENDER JOHN JAL:  Yes, Your Honour.

79HIS HONOUR:  Yes.  Well I will hand the document down to you to be signed and then I will sign it.  Well you can sit down now.

80James Jal, if you would stand please.

81I need to read out to you the conditions, in terms of this order.  It runs for three and a half years.  You must attend at the Frankston Community Correctional Services office.  Similarly, the address is here.

82The usual terms are: 

·You not commit another offence for which you could be imprisoned during the time of the order;

·You must not attend any program or appointment, affected by alcohol or drugs, or in possession of illegal drugs. 

·You must report to and receive visits from Community Corrections. 

·You must report to, as I think I have stated to you, I am not sure, that Community Corrections office within two days of today.  That would not include the weekend. 

·You must let Community Corrections know within two days of a change of address or job.  

·You must not leave Victoria without getting permission to do so from them; and

·You must obey all lawful instructions of Community Corrections.

83The additional conditions are"

·     That you perform 400 hours of unpaid works over that period;

·     That you be under supervision;

·     That you will undergo mental health assessment and treatment, as directed; and

·     That you participate in programs or courses that address factors related to the offending, as directed. 

84Do you understand that?

85OFFENDER JAMES JAL:  Yes, Your Honour.

86HIS HONOUR:  Do you agree to it?

87OFFENDER JAMES JAL:  Yes.

88HIS HONOUR:  I will get you to sign the order then. 

89All right, Mr Cinar, is there anything else I need to do?

90MR CINAR:  There is nothing further, Your Honour. 

91HIS HONOUR:  Ms Bossio, nothing ‑ ‑ ‑

92MS BOSSIO:  No, Your Honour.

93HIS HONOUR:  Well thank you very much for your assistance.  I have seen
a great deal of you both over the period.

94MS BOSSIO:  It has been a pleasure, Your Honour. 

95HIS HONOUR:  Thank you.  I will return to pick up my materials, so I will be back in about - a few minutes to get it.   

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