Director of Public Prosecutions v Kuol & Leek
[2023] VSC 751
•15 December 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2023 0058
| DPP | Crown |
| v | |
| Jacob KUOL | Accused |
S ECR 2023 0059
| DPP | Crown |
| v | |
| Timothy LEEK | Accused |
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JUDGE: | Fox J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 8 September 2023, 10 October 2023 & 7 December 2023 |
DATE OF SENTENCE: | 15 December 2023 |
CASE MAY BE CITED AS: | DPP v Kuol & Leek |
MEDIUM NEUTRAL CITATION: | [2023] VSC 751 |
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CRIMINAL LAW — Sentencing — Affray — Intentionally cause injury — Accused’s group of three instigated attack on individual — Attack led to opposing group becoming involved — Third member of accused’s group fatally stabbed by opposing group — Serious example of affray occurring in a busy public place — Kuol aged 19 and on youth parole at time of offending — Family support — Relevant prior convictions — Young offender — Leek aged 22 and on a community correction order imposed by the County Court at time of offending — Family support — Serious and relevant prior convictions — Early guilty pleas entered by both accused — Some remorse — Parity — Relevant differences — Leek in possession of knife at time assault commenced — Kuol assessed as suitable for community correction order — Leek assessed as not suitable for community correction order — Combination sentence within range for both accused — Kuol sentenced to 395 days’ imprisonment with a 12 month community correction order — Leek sentenced to 16 months’ imprisonment with an 18 month community correction order.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr J Lewis with Mr S Tan | Director of Public Prosecutions |
| For the accused Jacob Kuol | Ms S Wallace | Greg Thomas & Associates |
| For the accused Timothy Leek | Mr G Chisholm | Stary Norton Halphen |
HER HONOUR:
Jacob Kuol and Timothy Leek, you have each pleaded guilty to two offences: one charge of affray, and one charge of intentionally causing injury to Daniel Abdelrahman. The maximum penalty for affray is five years’ imprisonment. The maximum penalty for intentionally causing injury is 10 years’ imprisonment.
Mr Leek, you have also pleaded guilty to a summary offence of possessing a controlled weapon without lawful excuse. The maximum penalty for this offence is 120 penalty units or 12 months’ imprisonment.
The offending
Your offending occurred on 30 October 2022. At the time, Mr Kuol was on youth parole, and Mr Leek was subject to a community correction order imposed by the County Court five months earlier. You were together with a third associate, 18‑year‑old Kose Kose (‘Kose’). Kose is now deceased as a result of the events of this night.
At around 5:00am, police were called to the Adina Apartment Hotel in Queen Street, Melbourne, to assist hotel staff with removing a large number of alcohol affected youths who were being disruptive and verbally abusive. The two of you and the deceased were among this group. At approximately 5:40am, the three of you left the hotel together and walked towards Bourke Street.
Mr Abdelrahman, together with friends, was waiting for an Uber on Bourke Street in the vicinity of McDonald’s on Hardware Lane. Your group encountered him, it seems by chance, and immediately attacked him, outnumbering him three to one. Mr Abdelrahman was taken to the ground and repeatedly punched and kicked by the three of you. A friend of his commenced recording the incident on her mobile phone.
Mr Abdelrahman attempted to regain his feet. Mr Leek brandished a knife while kicking him twice to the back of the head. Mr Kuol then kicked him directly in the face. Both of you and Kose stood over Mr Abdelrahman, with the two of you kicking him in the head, and Kose stomping on his head and punching him in the face. Mr Leek brandished a knife towards the witnesses, and the friend stopped recording the incident. Another friend of Mr Abdelrahman’s eventually managed to pull him away, while the three of you continued to taunt him and try and attack him.
At this time, an associate of Mr Abdelrahman’s ran to where another group (‘the opposing group’) were congregating nearby on Queen Street and alerted them to the incident. The opposing group started walking towards Bourke Street.
Kose and Mr Kuol, who by now was in possession of the knife, commenced walking away, but Mr Leek continued to attack Mr Abdelrahman. At this point, Mr Leek was on top of Mr Abdelrahman and punching him to the head.
Mr Kuol discarded the knife, which was broken by this stage and later located in two pieces in Bourke Street. There is no suggestion Mr Kuol used or brandished the knife at any stage on this night. Mr Kuol and Kose can be seen on the CCTV footage looking back as they walk down Bourke Street. They then turn and start walking towards Mr Leek, while the opposing group approaches from the opposite direction.
The opposing group was made up of Bol Mangok, Amor Mangok, Nobel Ghebremichael (‘Ghebremichael’) and Kwar Ater (‘Ater’). Bol Mangok led the group and was armed with a knife. He pulled Mr Leek from Mr Abdelrahman and stabbed him once to the chest. Mr Leek dropped to the ground but later regained his feet, at which point Ater punched him to the head and Amor Mangok chased him.
Meanwhile, Bol Mangok exchanged blows with the deceased. Mr Kuol ran past and was stabbed to the upper right thigh by Bol Mangok as he did. He continued to run through the group, chased by Ghebremichael. Ater ran in to assist Bol Mangok. Ater grabbed the deceased and punched him four times to the head as Bol Mangok stabbed him five times to the upper torso and chest. Kose fell to the ground, at which point Ghebremichael and Amor Mangok ran over and kicked him multiple times. Kose was able to get up from the ground and the opposing group fled back up Bourke Street.
Despite your stab wound, you, Mr Leek, continued to assault Mr Abdelrahman, and the injured Kose punched him to the back of the head. The altercation finally ended when police attended and the two of you, together with Kose, attempted to flee. Mr Leek and Kose were immediately arrested. Mr Kuol successfully evaded police. Paramedics attended the scene and Kose was taken to the Royal Melbourne Hospital, where he died a short time later.
Mr Leek, you were also taken to the Royal Melbourne Hospital and underwent surgery to treat your stab wound. You remained in hospital until 6 November 2022. On 11 November, you were arrested and interviewed by police. You made a largely ‘no comment’ record of interview; said you had been drug affected and did not remember the incident; refused to provide the passcode to your phone; and said you did not know Mr Kuol. You were charged and remanded in custody, where you have remained.
Mr Kuol, you attended the Dandenong Hospital later on 30 October, where you received outpatient treatment for the stab wound to your right thigh. You were arrested on 16 November and also made a ‘no comment’ record of interview. You did consent to a physical examination and provided your fingerprints and DNA. You too were charged and remanded in custody, where you have remained.
Co-accused
Mr Abdelrahman was considered by police to be a victim only and declined to make a statement. Photographs show he suffered bruising and swelling to the right eye and minor abrasions.
Bol Mangok was charged with the murder of Kose and faces a trial in this Court in 2024.
Ater was initially charged with murder and other offences, but the prosecution is now proceeding with the charge of affray. His matter is continuing in this Court. He is currently on bail, having been granted bail on 13 September this year after the murder charge was discontinued.
Amor Mangok and Ghebremichael were charged with affray and granted bail. They pleaded guilty to the charge and were dealt with in the Magistrates’ Court. Neither had any prior convictions; they were unaware of the presence of knives; and they attended in response to the assault upon Mr Abdelrahman. Each received an 18 month community correction order with unpaid work hours and other conditions.
Victim impact
Victim impact statements were written by Kose’s mother, father and sister. While you are not criminally or directly responsible for his death, it occurred during the affray of which you were a part.[1] Kose’s family do not know either of you. You were older than him, and they believe you met through music and only came to know him in the last months of his life.
[1]It was not submitted by any party that I should not have regard to the victim impacts statements, cf DPP v Wal and Anor [2022] VSC 828 [52].
Kose’s mother had a very close relationship with her son and misses him every day. She tries to keep busy, but every day it gets harder, not easier. Kose was kind and helpful, and they would always have fun together. He was only 18, and while he was becoming his own man, he still needed her guidance and support. He was talented at music and soccer. Her son has been robbed of his future, and the pain of losing him is enormous.
Kose’s father, Mr Franco Kose, had a great relationship with his son. They played soccer together and talked like friends. Kose was a helpful, happy boy who was loved by his family and friends. Mr Kose has been left heart broken by his death, and is surrounded by painful reminders that he has gone.
Kose’s younger sister feels like a part of her is missing. She is lost, empty and broken. Her brother was her friend, confidant and biggest supporter. He made her feel safe and took care of her. She misses him constantly.
It is clear that Kose was part of a close, loving family. The house feels empty without him, and his family continues to grieve his loss. His friends and community have been devastated by his death.
While there is no statement from Mr Abdelrahman, it is reasonable to assume that he would have been very frightened by your sudden and violent attack.
Personal circumstances — Jacob Kuol
Your family are originally from South Sudan but fled the war. You were born in a refugee camp in Kenya on 21 February 2003. You immigrated to Australia with your family in 2004. You are the third youngest of 10 children and have two half siblings. At the time of the offending, you were living with your parents and siblings in Clyde North.
Your family are supportive, but have been at a loss to manage or prevent your antisocial and criminal behaviour. Your older brother Abraham provided a reference. He is a project manager for Afri‑Aus Care and RMIT. He is supportive, and willing to actively mentor and assist you once you are released. Somewhat concerningly, he holds the view that in the past you have been provided with ‘culturally inappropriate and unresponsive support’, and contrasts this with involving supports such as Afri‑Aus Care in your rehabilitation. The reality is that you have previously been referred to Afri‑Aus Care through CISP and Youth Justice, but disengaged. CISP reports and a Youth Justice pre‑sentence report make clear that you have failed to engage, or engaged superficially, with a vast array of supports including Afri‑Aus Care.
Ms Luka, CEO and founder of Afri‑Aus Care, provided a letter to the court but did not refer to your previous involvement with the service. They have worked with your mother, who says you are the only child who has given her such problems. The service remains willing to support you going forward.
You attended various primary schools due to housing relocations, and two different high schools. You passed Year 10 below standard on all subjects and have not completed any further formal education. Throughout 2020 and 2021 there were some efforts to engage you in TAFE pathways, but you did not engage with those opportunities and none were ultimately successful.
You commenced using alcohol and drugs at the age of 16 when at parties with peers. In 2019, your substance use escalated, and in 2020, your criminal history commenced. Beginning in September 2020, you have five prior court appearances, two in the Children’s Court. You have prior convictions or appearances for unlawful assault, affray and violent disorder. There are 21 bail offences, including contravening conduct conditions and offending while on bail. You have twice breached a youth supervision order. You have also committed offences of dishonesty, aggravated burglary and aggravated home invasion. On 6 April 2022 you were convicted and received 18 months’ youth justice detention, with almost 11 months declared as pre‑sentence detention. On 17 August 2022 you were released on youth parole, and just over two months later you committed this offence.
On 26 April 2022 you received 69 days’ imprisonment, declared as time served, for offences of robbery, attempted criminal damage and bail offences. This is a little hard to place chronologically, as you were in youth justice detention at this time, but it seems you had available pre‑sentence detention after your bail was revoked in December 2021 and you were held at the Margoneet Correctional Facility.
According to your counsel, your engagement with Youth Justice began in December 2019. A Youth Justice pre‑sentence report dated 1 April 2022 noted that you were motivated to engage with Youth Justice when in custody, but unwilling to meaningfully engage when in the community. As stated in that report:
Jacob has a distinct and predictable pattern of behaviour, observed as being released from custody, engaging in substance use, presenting as substance effected in appointments, demonstrating poor compliance and disengagement (and ultimately resulting in antisocial behaviour).
That description neatly encapsulates what occurred when you were released on youth parole and went on to commit these offences.
Your criminal history reveals that you have not, thus far, taken the conditions imposed by courts seriously. You have been undeterred by youth supervision, youth detention and a short period in adult custody. This suggests your prospects of rehabilitation are not good at all. However, you are still a young offender, albeit not a child, and your rehabilitation remains a relevant sentencing aim. You were 19 at the time of this offending and are now 20 years old. You have spent approximately one year on remand in adult prison, which is a substantial period of time for a young offender. You are also fortunate to have considerable family support.
Your counsel acknowledged your lack of engagement with Youth Justice, but submitted that opportunities were made substantially more difficult due to the Covid‑19 pandemic. In my view, there is merit in that submission. You received your first youth supervision order on 9 September 2020, during a period of lockdown. Face‑to‑face meetings were suspended, and more generally, the opportunity to engage in meaningful prosocial activities was reduced. You were also not vaccinated, which further reduced your ability to attend services, including Afri‑Aus Care. I accept that the disruption and difficulties created by the pandemic, and resulting lockdowns, would have made engaging with supports more challenging.
A psychological report was tendered on your behalf. Ms Cidoni, psychologist, assessed you as a medium risk of violent reoffending. At the time of the offending, you had consumed large quantities of alcohol and two MDMA pills. She noted that your prior criminal history includes offences of a serious nature, and there is a correlation between your drug use and offending. Ms Cidoni diagnosed you with substance use disorder and persistent depressive disorder. You also display traits associated with post‑traumatic stress disorder. Ms Cidoni did not identify the relevant trauma, but did note that the death of Kose has had a profound impact on you. Your counsel did not rely on any of the principles in Verdins.[2]
[2]R v Verdins (2007) 16 VR 269 (‘Verdins’).
You have remained drug‑free since on remand. You have been held in the Scarp Unit at Port Phillip prison, and are one of the youngest there. Earlier in your remand you were involved in ongoing fighting between different parties, which led to periods in protection or management. However since May this year you have remained on the unit. You have not engaged with employment nor attempted any programs or courses. You predominantly associate with other young offenders, and spend your time playing soccer, table tennis or undertaking other physical activities.
You expressed some victim empathy, and said you were very sad and ashamed by your offending. You also expressed regret and remorse to Ms Cidoni. You told Corrections you no longer associate with negative peers since being remanded and expressed no desire to engage with them when released from custody.
Personal circumstance — Timothy Leek
You were born in Clayton, Victoria, on 16 June 2000 and are the eldest of five sons. Your parents are from Sudan and had earlier immigrated to Australia. You have a positive relationship with your parents and younger siblings, and grew up in a peaceful, supportive environment.
According to the material, you attended two primary schools and six high schools, five in Australia and one in America. You excelled at basketball and obtained a scholarship to attend high school in Nebraska in the United States for one year when you were approximately 17 years old. Your goal was to obtain a college basketball scholarship, but that did not eventuate. According to you, the school principal did not like you and you were asked not to return after the semester ended. You convinced your mother to bring you home, as you missed Australia and your family. You returned to school, continued to play basketball and completed Year 12 in 2019. You have not been involved in any education or employment since leaving school.
After returning from America, and certainly since leaving school, it seems your life revolved largely around alcohol, drugs and negative peers. You stopped taking basketball seriously and began committing increasingly serious criminal offences. You appeared in the Magistrates’ Court in February 2020 for offences of affray, dishonesty and contravening bail conditions. The affray was committed in circumstances where you were with a group of males and attacked an individual in a public place. You received an 18 month community correction order, which you went on to breach. In September 2021, you received a term of imprisonment for breaching that order and committing further offences, including aggravated burglary.
On 8 March 2021 and while on bail, you were engaged in a serious example of violent disorder. You were part of a group of offenders who attacked another group in a public elevator. Knives were used, and a number of people sustained injuries, including one of your group who suffered life‑threatening injuries after being stabbed in the chest. He fortunately made a good recovery, but the risk of using and carrying knives must have been clear to you after this, if it was not already.
Prior to sentencing, you were placed on CISP bail for approximately six months and your progress was commendable. On 27 June 2022, you were convicted and sentenced in the County Court to 284 days’ imprisonment (which comprised of time served) and an 18 month community correction order. This offending breaches that order.
A lengthy psychological report authored by Dr Michael Davis, clinical psychologist, was tendered on your behalf. Dr Davis gave evidence at the plea hearing. He diagnosed you with post-traumatic stress disorder, with the trauma being witnessing your friend being stabbed and being stabbed yourself. Your main symptoms are intrusive thoughts and dreams related to the offending. He also diagnosed you with persistent depressive disorder and mixed personality disorder with antisocial and borderline features, both of which existed prior to the offending. Despite medication, you continue to have concerning levels of depressed mood. You have historically self‑medicated with illicit substances that have a sedative and dampening effect. Since being in custody, you have self‑medicated with illicitly obtained buprenorphine, an opiate type drug.
You told Dr Davis that you had been a member of a gang since 2018. You did not know Mr Abdelrahman, but he was in ‘opposition’ to you and said something that offended your group. This was all it took for you to attack him as you did. You did express some remorse to Dr Davis. You told him the attack was unnecessary and you should not have hurt him. You said you knew Kose well, and feel very sad that he, of all people, was killed. When asked if you had any thoughts of revenge due to Kose’s death, you admitted you had thought of it, but went on to say that it would not do any good and would see you returned to prison. You said instead that you would try to be successful, as that is the best revenge.
At the time of the offending, you were highly intoxicated on a combination of alcohol, MDMA and alprazolam. Dr Davis was unable to draw any connection between your mental health issues and this offending. He assessed you as a high risk of violence if you are abusing substances and associating with antisocial peers, and a moderate risk of violence if you are not. Substance abuse is a real problem for you, and you have many criminal and antisocial contacts. He said you have expressed a desire to change your life, but that must be treated cautiously, as you have a history of returning to substance abuse and gang affiliation when in the community. You told Dr Davis that you will stop using substances when released, but conceded you will probably use cannabis. You have been involved in fights at least twice while in custody, and have developed an opioid use disorder due to your abuse of buprenorphine.
Dr Davis opined that your experience of incarceration appears to be more difficult than the average inmate. He attributes this to your concerning levels of depression despite medication, your youth and your underlying personality. He said prison has certainly amplified your symptoms of depression and anxiety. You also have a poorly established and fragile sense of self. You feel you failed at basketball in America, and when that dream shattered, your sense of self reduced considerably. In Dr Davis’ opinion, your personality is still developing, and imprisonment presents a risk that it will be negatively shaped and the dysfunctional aspects will become entrenched.
Your counsel, relying on Verdins, argued general deterrence should be moderated in your case as you are not ‘the perfect everyman’ who is ‘the perfect vehicle for general deterrence’. No offender, in my experience, would fit the description ‘the perfect everyman’, whatever that means. General deterrence is a significant sentencing factor in this case, and your mental health issues are not of sufficient severity to require moderation of that factor.[3]
[3]Whether mental impairment at the time of sentencing requires appropriate moderation of general deterrence depends on the nature and severity of the symptoms. Further, a moderation of general deterrence will not ordinarily be required where the condition (here, relevantly, post-traumatic stress disorder) arises after, and as a result of, the offence. See Director of Public Prosecutions v O’Neill [2015] VSCA 325 [82]–[83].
Your counsel also submitted that Verdins principle 5 has application, and a sentence of imprisonment will weigh more heavily on you than it would on a person of normal mental health. I accept, based on the evidence of Dr Davis, that this principle has modest application here. Finally, your counsel submitted that ‘it may well be’ that Verdins principle 2 has application, and your mental health has some role to play in the kind of sentence imposed. In my view, your mental health is one of a range of factors to be taken into account, but it is not of sufficient severity to play a meaningful role in the choice of appropriate sentence.
Positively, you continue to enjoy the support of your family and members of the community. Six character references were tendered on your behalf. Afri‑Aus Care is willing to support you, and you are reportedly keen to participate in their programs and be mentored by a player from the Black Rhinos basketball team. You have started to play basketball again while in prison, although you need to regain your fitness and your lung injury makes breathing more difficult at times. You hope to return to competition basketball, and have the support of basketball organisations.
However, in my view, your prospects of rehabilitation are very guarded given your history. You had the same supports available when you were released onto a community correction order in 2022, yet went on to reoffend and breach the order. Specific deterrence — that is, the need for any sentence to deter you personally from continuing to offend — is a significant sentencing purpose.
Sentencing disposition
It was submitted on behalf of both of you that whilst some period of imprisonment is inevitable, a combination sentence that sees you released onto a community correction order is appropriate in all the circumstances. Particular reliance was placed on your age.
The prosecution submitted that your offending warrants a term of imprisonment. In Mr Kuol’s case, they did not submit a combination sentence was outside the range of available penalties. In Mr Leek’s case, they submitted the offending warrants a head sentence and non‑parole period, given the seriousness of the offending which occurred during the course of previous community correction orders.
I had you both assessed by Corrections and have received two reports.
Mr Kuol, you were assessed as suitable. Your general risk of reoffending is high. You engaged well throughout the assessment and recognised that your family were disappointed and frustrated by your offending behaviour. Encouragingly, you would like to engage in support services to address any mental health concerns. You explained your previous non‑compliance as due to immaturity and being in a ‘rebellious stage’. You are willing to engage in drug and alcohol treatment and rehabilitation, together with any other programs deemed necessary.
Mr Leek, you were assessed as not suitable. You told Corrections you had not used any drugs since being remanded in custody, which is untrue. You did engage with the assessment, and explained your past breaches by stating that you did not think your first community correction order was helping you, and when given a second opportunity, you still did not take it seriously. Corrections concluded that despite your consent and motivation to undergo a further community correction order, your history demonstrates such orders have had little deterrent effect and you have little regard for court mandated orders. You are a high risk of reoffending, your offending behaviour continues to escalate and you persist with your pro‑criminal lifestyle.
Your counsel submitted that despite the assessment, the Court should sentence you to a term of imprisonment combined with a community correction order. In particular, it was submitted that while prison is not meant to be pleasant, and designed to deter offenders from reoffending, in your case it may lead you down a path of entrenched criminality which would not serve the community in the long run. Your counsel submitted you are only 23 years old, and despite your history, your prospects of rehabilitation are not extinguished.
Other matters
This was a serious example of a public affray. The CCTV footage shows the area was busy despite the hour. The incident lasted approximately four minutes and innocent people at or near the scene would have been terrified. I acknowledge that neither of you caused the death of the deceased. However, his death does evidence the seriousness of the fight and the nature of the affray as a whole.[4] This was not a minor skirmish or melee; it was a determined confrontation involving weapons and real violence. Both of you were part of the group who instigated the attack, which seems to have been triggered by nothing more than a comment which offended you.
[4]R v Feretzanis [2003] VSCA 8 [18].
The charge of causing injury intentionally is not a particularly serious example of that offence when one focusses on the injury. However, the offence cannot be divorced from the overall context of the crime. It occurred during an assault in company that lasted several minutes, and was committed against a single victim. While that charge carries the higher maximum penalty, in my view the affray is the more serious offence here.
You both pleaded guilty at the earliest reasonable opportunity and this entitles you to a significant sentencing discount. Your guilty plea has facilitated the course of justice, shows an acceptance of responsibility by you for your crimes, and has substantial utilitarian or practical value. It has saved the witnesses the ordeal of giving evidence in a criminal trial. Additionally, given your pleas were entered at a time when the Court’s listings remained impacted due to the Covid‑19 pandemic, they have an additional benefit which must be reflected in the sentence I impose.[5]
[5]Biba v The Queen [2022] VSCA 168 [26], referring to Worboyes v The Queen (2021) 96 MVR 344; [2021] VSCA 169.
You both sustained injuries in the course of this incident. Physical injuries sustained during the commission of a crime may be mitigating if they add to the burden of imprisonment, or constitute a form of extra curial punishment.[6] Arguably, by the time your injuries were sustained, your group had moved from being the offenders to the victims.
[6]Delzoppo v The Queen [2011] VSCA 141 [22]. See also El‑Hassan v The King [2023] VSCA 307, where the relevance of injuries sustained during a crime to sentencing was discussed.
Mr Leek, you sustained a stab wound to your left chest, which damaged your lung and required immediate hospitalisation and surgery. You still have trouble breathing at times of physical exertion. Given your passion for basketball, if the difficulties with breathing persist, this will serve as an ongoing reminder of the events of this fatal day. Mr Kuol, your injury was less serious. You received a small but deep laceration to your right thigh requiring six stitches. There is no evidence that either of you are finding imprisonment more difficult as a result of the injury you sustained, and indeed you both remain physically active. This is not a case where your injuries have resulted in serious physical disabilities that you will carry for life.[7] In those circumstances, the extent to which you have suffered any extra curial punishment is modest, in the case of Mr Leek, and not a factor of any real weight in the case of Mr Kuol.
[7]Cf DPP v King [2008] VSCA 151, where the offender suffered a serious brain injury.
You are both still reasonably young, and you, Mr Kuol, are still a young offender as that phrase is defined in the Sentencing Act 1991 (Vic).[8] In the case of young offenders, punishment focussed on rehabilitation is to be preferred, and successful rehabilitation of a young person benefits both the community as well as the offender.[9] That said, the weight to be attached to youth correspondingly reduces as the level of seriousness of the criminality increases.[10] Further, you both have relevant prior convictions, particularly Mr Leek. I accept that your rehabilitation remains an important sentencing purpose, given your age, but this is not a case where either of you are first time young offenders and entitled to real leniency.
[8]Sentencing Act1991 (Vic) s 3(1).
[9]R v Mills [1998] 4 VR 235.
[10]Azzopardi v The Queen (2011) 35 VR 43, 57 [44].
General deterrence, denunciation and punishment are important sentencing considerations. You outnumbered and violently attacked a young man on a public street. The community is rightly appalled and alarmed by such incidents, and ultimately, a different young man lost his life. I must denounce your conduct and punish you for your crimes. General deterrence — that is, the need to send a message to other would‑be offenders — is also a significant sentencing aim. If you involve yourself in this type of conduct you should expect to receive a term of imprisonment. Specific deterrence is also a relevant sentencing factor in both your cases.
I turn to the question of parity. Mr Leek, you wielded a knife and this aggravates your role in the affray. It is highly dangerous, and you must have known this, particularly given your history. You did not just start a fight; you produced a knife. You also persisted with the attack on Mr Abdelrahman after Mr Kuol and Kose had commenced walking away; perhaps things may have ended differently if you had walked away with them. You were the oldest of your group of three; your prior convictions are the most serious; and you were on your second community correction order. For all these reasons, the sentence I impose on you will be greater than that imposed on Mr Kuol.
Sentence — Jacob Kuol
In all the circumstances, I have determined the appropriate sentence is a term of imprisonment followed by a community correction order.
The sentence of the Court is as follows:
On charge one, you are convicted and sentenced to 365 days’ imprisonment.
On charge two, you are convicted and sentenced to 180 days’ imprisonment.
The sentence on charge one is the base sentence. I direct that 30 days of the sentence on charge two be served cumulatively upon the sentence on charge one. This makes a total effective sentence of 395 days’ imprisonment and, upon release from custody, you will be subject to a 12 month community correction order with conditions.
Together with the mandatory conditions that I will not read out, I impose the following conditions:
·You are to be under the supervision of Community Corrections for the duration of the order;
·You are to undergo drug assessment and treatment, including testing, as directed;
·You are to undergo alcohol assessment and treatment, including testing, as directed;
·You are to undergo mental health assessment and treatment as directed;
·You are to undergo any other program, course or treatment as directed, including offending behaviour programs; and
·You are to attend for judicial monitoring at 9:30am on Friday 1 March 2024, and thereafter as directed by the Court.
I confirm you have consented to the community correction order.
I declare you have served 394 days by way of pre‑sentence detention, such period to be reckoned as time already served under this sentence.
If you breach the Order, either by non‑compliance or further offending or both, you will be brought back before me on the breach. Depending on the nature of the breach, you may be resentenced for these offences. If that were to happen, you may find yourself being sentenced to a further term of imprisonment for this offending.
Sentence — Timothy Leek
Mr Leek, I have found sentencing you a more difficult exercise. There are good reasons not to impose a further community correction order, and that is the course the prosecution urged me to take. The sentencing judge on the last occasion emphasised that you needed to comply with the terms of the order, but you failed to engage and committed these further serious offences.
After careful consideration, I have reached the conclusion that a term of imprisonment combined with a community correction order is capable of meeting all the purposes of sentencing. Your prospects of rehabilitation are poor but not extinguished. Given your age and mental health issues, your rehabilitation will benefit and protect the community if it is achieved. A community correction order enables you to be subject to supervision and treatment for a lengthy period of time while in the community, which I consider necessary if you are to be successfully rehabilitated.
I do not accept your counsel’s written submission that a judicial monitoring condition should not be imposed, because if the County Court extends the order it imposed, judicial monitoring can be dealt with by that court. It is unknown what that court will do and it is for this Court to determine the appropriate conditions. I have given consideration to a curfew condition, and reached the view that a short curfew condition is appropriate, given both this offending and the prior violent disorder offending occurred in the early hours of the morning. I do not consider conditions restricting where you go are necessary. If you abide by the initial curfew, and do not use illegal drugs or drink alcohol to excess, then the conditions of the order are adequate. If you do not, you will breach the order and likely return to prison.
The sentence of the Court is as follows:
On charge one, you are convicted and sentenced to 14 months’ imprisonment.
On charge two, you are convicted and sentenced to six months’ imprisonment.
On the summary charge of possess a controlled weapon without lawful excuse, you are convicted and sentenced to seven days’ imprisonment.
The sentence on charge one is the base sentence. I direct that two months of the sentence on charge two be served cumulatively upon the sentence on charge one. This makes a total effective sentence of 16 months’ imprisonment and, upon release from custody, you will be subject to an 18 month community correction order with conditions.
For the avoidance of doubt, the sentence on the summary charge is wholly concurrent and does not form part of the community correction order.
Together with the mandatory conditions that I will not read out, I impose the following conditions:
·You are to be under the supervision of Community Corrections for the duration of the order;
·For the first three months of the order, you must remain at your home address between the hours of 11:00pm and 6:00am;
·You are to undergo drug assessment and treatment, including testing, as directed;
·You are to undergo alcohol assessment and treatment, including testing, as directed;
·You are to undergo mental health assessment and treatment as directed;
·You are to undergo any other program, course or treatment as directed, including offending behaviour programs; and
·You are to attend for judicial monitoring at 9:30am on Wednesday 1 May 2024, and thereafter as directed by the Court.
I confirm you have consented to the community correction order.
I declare you have served 399 days by way of pre‑sentence detention, such period to be reckoned as time already served under this sentence.
If you breach the Order, either by non‑compliance or further offending or both, you will be brought back before me on the breach. Depending on the nature of the breach, you may be resentenced for these offences. If that were to happen, you may find yourself being sentenced to a further term of imprisonment for this offending.
Section 6AAA
I am obliged pursuant to s 6AAA of the Sentencing Act 1991 (Vic) to state the sentence I would have imposed if you had not pleaded guilty.
Mr Kuol, but for your plea of guilty, I would have sentenced you to a total effective sentence of 20 months’ imprisonment with a non‑parole period of 14 months.
Mr Leek, but for your plea of guilty, I would have sentenced you to a total effective sentence of two years and six months’ imprisonment with a non‑parole period of 18 months.
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