Director of Public Prosecutions v Kuol (Ruling)
[2023] VSC 385
•4 July 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2023 0058
| Director of Public Prosecutions | Crown |
| v | |
| Jacob Kuol | Accused |
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JUDGE: | Fox J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 4 July 2023 |
DATE OF RULING: | 4 July 2023 |
CASE MAY BE CITED AS: | DPP v Kuol (Ruling) |
MEDIUM NEUTRAL CITATION: | [2023] VSC 385 |
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CRIMINAL LAW — Procedure — Accused elected to stand trial without a committal on charges of affray and causing injury intentionally — Matter resolved to a guilty plea — Application by accused to transfer both charges to the Magistrates’ Court to be dealt with summarily — Application refused — Criminal Procedure Act 2009 ss 28, 29, 143 & 168 — DPP v Batich [2013] VSCA 53.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr J Lewis, with Mr S Tan | Office of Public Prosecutions |
| For the Accused | Ms S Lacy | Greg Thomas Barristers and Solicitors |
HER HONOUR:
Introduction
The accused is charged with affray and causing injury intentionally. He makes application pursuant to s 168 of the Criminal Procedure Act 2009 (‘the Act’) for the charges to be transferred to the Magistrates’ Court and dealt with summarily. The application is opposed.
The offending
Both charges arise out of events that occurred on the morning of 30 October 2022. At around 5:00am, police attended the Adina Apartment Hotel on Queen Street, Melbourne, to assist with removing a large group of alcohol‑affected youths. Among the group were the accused, Timothy Leek (‘Leek’) and Kose Kose (‘the deceased’). They left the hotel and walked towards Bourke Street.
Around the same time, another group consisting of Bol Mangok, Amor Mangok, Kwar Ater (‘Ater’) and Nobel Ghebremichael (‘Ghebremichael’) were leaving Daha Bar on Queen Street. They remained outside the venue after leaving. Daniel Abdelrahman (‘Abdelrahman’) and a friend had also recently left Daha Bar and were waiting for an Uber on Bourke Street.
The accused, Leek and the deceased encountered Abdelrahman in Bourke Street and a fight ensued. Abdelrahman was outnumbered three‑to‑one. He was placed in a headlock and taken to ground, where he was repeatedly punched and kicked by Leek, the accused and the deceased. Leek, while brandishing a knife, kicked Abdelrahman in the head, and the accused kicked him in the face. Abdelrahman’s friend managed to pull him from the ground, at which point Leek, the accused and the deceased continued to taunt and try to attack him.
Bol Mangok, Ater, Amor Mangok and Ghebremichael were alerted to what was occurring by an associate of Abdelrahman. A member of this group was armed with a small knife. Amor Mangok took possession of a ‘Friday the 13th’ style hockey mask, which hid his face, and wore it during the incident. The group commenced walking from Queen Street towards Bourke Street.
The deceased and the accused, who was now in possession of the knife brandished by Leek, started to walk away. Leek remained and continued to hit Abdelrahman. The accused and deceased then walked back towards Leek.
Bol Mangok, leading the opposing group and holding a knife behind his back, ran at Leek. Bol Mangok pulled Leek off Abdelrahman and stabbed him in the chest, causing Leek to drop to the ground. Leek regained his feet, and was punched by Ater and chased by Amor Mangok.
Still armed with the knife, Bol Mangok began fighting the deceased. As he was doing so, the accused ran past, and Bol Mangok stabbed the accused in the thigh. Ghebremichael then began to chase the accused.
The fight between Bol Mangok and the deceased continued. Bol Mangok stabbed the deceased at least four times to the chest and torso. As he did so, Ater restrained the deceased, punching him repeatedly to the head. The deceased fell, following which Amor Mangok and Ghebremichael kicked him several times as he lay on the ground.
Bol Mangok, Amor Mangok, Ater, and Ghebremichael fled the scene towards Queen Street. The deceased and Leek continued to assault Abdelrahman in spite of their injuries.
The altercation ended when a police unit arrived. Leek and Abdelrahman were quickly arrested, however the accused successfully evaded police. The deceased, who was bleeding heavily, collapsed in front of a shop. He was taken to Royal Melbourne Hospital and died soon after arrival. Leek was also taken to hospital and treated for a single stab wound to the left chest. The accused sought treatment for his stab wound at Dandenong Hospital later that morning.
Police executed a search warrant at the accused’s address on 16 November 2022. Although the accused was not present, he was located by police at a Pakenham address shortly afterwards. The accused was arrested and gave a ‘no comment’ interview. He was remanded in custody and has remained there since his arrest.
Procedural history
On 4 April 2023, the accused elected to stand trial without a committal proceeding pursuant to s 143 of the Act. This procedure is commonly referred to as the fast‑track process. Having made the election, the accused was committed for trial in the Supreme Court on the charges of affray and causing injury intentionally.
On 27 June 2023, the accused filed an application seeking that the charges be transferred to the Magistrates’ Court pursuant to s 168 of the Act.
Co-accused
Ater and Bol Mangok are each charged with murder, affray, causing serious injury intentionally and causing injury intentionally. The complainant with respect to the latter two charges is Leek. Ater and Bol Mangok have each indicated an intention to plead not guilty. Their matters have yet to be given a trial date, and hearings pursuant to s 198B of the Act are listed to commence on 19 July 2023.
Leek was arrested on 11 November 2022 and remanded. Like the accused, he was charged with affray and causing injury intentionally to Abdelrahman. He also elected to proceed via the fast‑track process. On 30 May 2023, Leek was arraigned and entered pleas of guilty to both charges. His plea hearing is listed on 8 September 2023 in this Court.
Ghebremichael and Amor Mangok are each charged with affray. Both applied for summary jurisdiction, which was opposed by the prosecution but granted on 20 June 2023. Their plea hearings are listed at Melbourne Magistrates’ Court on 3 August 2023. Both were granted bail at the time of their arrest and remain on bail.
The applicable legislation
Section 168 of the Act empowers the court to order that a proceeding for a charge for an indictable offence that may be determined summarily be transferred to the Magistrates’ Court. There are three criteria that must be met before a charge may be transferred: one, the charge must concern an indictable offence that is triable summarily;[1] two, the accused must consent to the transfer;[2] three, the court must consider the charge appropriate to be determined summarily, taking into account the factors set out in s 29(2) of the Act.[3] If an order is made under s 168, the transferred charges must be heard and determined summarily.[4]
[1]Criminal Procedure Act 2009 (‘the Act’), s 168(1).
[2]The Act, s 168(1)(a).
[3]The Act, s 168(1)(b)(i).
[4]The Act, s 168(3).
Section 29(2) provides:
(2)For the purposes of subsection (1)(a), the Magistrates’ Court must have regard to —
(a)the seriousness of the offence including —
(i)the nature of the offence; and
(ii)the manner in which the offence is alleged to have been committed, the apparent degree of organisation and the presence of aggravating circumstances; and
(iii)whether the offence forms part of a series of offences being alleged against the accused; and
(iv)the complexity of the proceeding for determining the charge; and
(b)the adequacy of sentences available to the court, having regard to the criminal record of the accused; and
(c)whether a co-accused is charged with the same offence; and
(d)any other matter that the court considers relevant.
The Court of Appeal discussed the interaction between ss 29 and 168 in DPP v Batich,[5] stating that the transferring court has a ‘broad discretion to weigh a range of considerations going to whether an order for transfer should be made.’[6] Further, the Court of Appeal emphasised that even where the accused consents to the transfer and the charge is considered appropriate to be transferred under s 29(2), the decision to transfer a charge is a discretionary one, having regard to the circumstances of the case.[7]
[5][2013] VSCA 53.
[6]Ibid [33].
[7]Ibid [37].
The accused’s submissions
The accused was 19 years old at the time of the incident and has since turned 20 in custody. Ms Lacy conceded that he has a relevant prior criminal history, including two charges of affray arising from fights between two groups at the Parkville detention facility. However, she noted that nearly all prior matters were dealt with in the Children’s Court. There is one matter from the Ringwood Magistrates’ Court on 26 April 2022, for which the accused received 69 days’ imprisonment reckoned as time served for robbery, attempted criminal damage and contravening bail conditions; however, it seems this may relate to earlier offending when he was held on adult remand, as at the time of the sentence the accused was in youth detention.
With respect to the present offending, counsel submitted that the charge of causing injury intentionally sits at the lower end of seriousness. The complainant, Abdelrahman, suffered bruising and a swollen eye. The complainant declined to make a statement, and the prosecution rely on photographs of his injuries and an expert report in support of the charge.
It was conceded the affray is a serious example of the charge, however Ms Lacy submitted that the accused played a lesser role than Leek, and unlike Leek, he did not brandish or use a knife. Ghebremichael and Amor Mangok were granted summary jurisdiction, in circumstances where their offending involved kicking the deceased multiple times as he lay on the ground. Ms Lacy agreed that ideally, all matters should have stayed together and been dealt with by the same judicial officer. However, in circumstances where the proceedings are already fragmented, her client’s matter best fits with the two co‑offenders who are being dealt with in the Magistrates’ Court, as like them, he did not use a weapon.
It was submitted this is not a complex proceeding. The Magistrates’ Court has adequate sentencing power, given the accused is a youthful offender, has a limited criminal history, family support, arguably good prospects of rehabilitation and will have pleaded guilty at the earliest opportunity. The Magistrates’ Court has the power to impose a sentence of up to two years’ imprisonment on each charge, resulting in a total available maximum of four years’ imprisonment, which is more than adequate to deal with the totality of the offending.
The prosecution submissions
The prosecution submitted the offending is serious, and the accused was actively involved in the instigation of the affray. Further, relying on R v Feretzanis,[8] they submitted that it is proper to take into account the death of a victim when assessing the seriousness of an affray, notwithstanding that the accused is not charged with a homicide offence. They argued the seriousness of the offending is a significant consideration in this matter.
[8][2003] VSCA 8.
Mr Lewis submitted that there is a range of available sentences on the charge of affray, and the upper level of that range impinges on the two year maximum that would be available if the matter was dealt with in the Magistrates’ Court. In those circumstances, he submitted that the matter should not be transferred, as to do so may unfairly curtail the sentencing discretion. The prosecution submitted that if there is any uncertainty as to the adequacy of the sentencing powers, the matter should not be transferred.
The prosecution argued that the co‑accused most closely aligned with the accused is Leek, and this is a significant reason why the matter should not be remitted. Leek is pleading guilty to the same offences. It is desirable that both Leek and the accused are dealt with by the same judge at the same hearing, to ensure consistent factual findings are made and the principle of parity can be properly applied. The prosecution conceded that this consideration has been complicated to some extent by the fact that Amor Mangok and Ghebremichael were granted summary jurisdiction, but noted they are in a different position to that of the accused.
Analysis
Pursuant to the requirements set out in s 28 of the Act, both affray and causing injury intentionally are capable of being heard and determined summarily. The accused seeks the transfer so it is axiomatic that he consents to the transfer. The argument before me focussed on whether it is appropriate that the charge be determined summarily, having regard to the matters set out in s 29(2) of the Act. It is convenient to deal with those mandatory considerations in turn.
Section 29(2)(a) — the seriousness of the offence, including the matters set out in sub‑paragraphs (i)–(iv)
This sub‑section directs the Court’s attention to both the general nature of the offence, and whether it is a serious example of the offence in question. Of course, the seriousness of the indictable offence is already limited by the requirements of s 28.
Affray carries a maximum penalty of five years’ imprisonment, and by reference to that criteria alone, is placed fairly low in the hierarchy of indictable offences. However, a public affray is nonetheless a serious offence, and in my view, this is a serious example of affray. It occurred in a busy, public place; weapons were both brandished and used; and the initial attack by the accused, Leek and the deceased appears unprovoked. The incident lasted approximately four minutes, and innocent persons at or near the scene would have be terrified. I acknowledge that the accused is not charged with a homicide offence and did not cause the death of the deceased. However, the death does evidence the seriousness of the fight and the nature of the affray as a whole.[9] This was not a minor skirmish or melee; it was a determined confrontation involving weapons and real violence. In my view, the seriousness of the affray is a reason why the matter should not be remitted.
[9]R v Feretzanis [2003] VSCA 8, [18].
The charge of causing injury intentionally, which carries a 10 year maximum penalty, 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 committed against a single victim.
I accept that the proceeding is a plea hearing; it will not be complex and plea hearings are routinely dealt with summarily. The charges do not attract any additional complexities pursuant to the Sentencing Act 1991, by which I mean they are not category 1 or 2 offences or similar.[10] Nor do the offences form part of a series of other offences being alleged against the accused, which may make transferring charges undesirable.
Section 29(2)(b) — the adequacy of sentences available to the court, having regard to the criminal record of the accused
[10]For example, pursuant to the Sentencing Act 1991, certain offences are defined as a ‘category 1 offence’, ‘category 2 offence’, ‘Category A serious youth offence’, or ‘Category B serious youth offence’. These offences may attract a mandatory custodial sentence unless a statutory exception exists, or attract a mandatory minimum non‑parole period. There are also ‘violent offences’ and ‘serious violent offences’ which may make an offender a ‘serious offender’ for the purposes of Part 2A of the Act. This list is not exhaustive.
If the charges are transferred to the Magistrates’ Court to be heard summarily, the maximum penalty that may be imposed on any single charge is two years’ imprisonment.[11] The total effective sentence cannot exceed five years’ imprisonment,[12] however given there are only two charges here, the total available maximum is four years, not five. The accused has relevant prior convictions for violence. In September 2020, he received a 10 month youth supervision order for offences including aggravated home invasion, violent disorder and unlawful assault. He breached that order. In April 2022, he was convicted and sentenced to 18 months’ youth detention for two counts of affray, three counts of unlawful assault and two counts of aggravated burglary.
[11]Sentencing Act 1991, s 113.
[12]Sentencing Act 1991, s 113B.
In DPP v Batich, the Court of Appeal considered the requirement contained in s 29(2)(b) of the Act. Unsurprisingly, the Court stated that if none of the sentences available in the jurisdiction to which the offence is transferred are adequate, it would not be appropriate to transfer the charge.[13] The Court considered the phrase, ‘the adequacy of sentences available to the court’, and stated:
In our view ‘adequacy’ means ‘acceptability’ or ‘sufficiency’. The ‘adequacy of sentences available to the court’ calls for a consideration of the maximum term of imprisonment available within the Magistrates’ Court and the types of sentences that are available. ‘Adequacy’ involves a judgment as to whether in the circumstances an acceptable or sufficient level or measure is met or exists. It does not require a conclusion that every possible contingency is covered. Indeed, to impose such a requirement would substitute perfection for adequacy. ‘Adequacy’ itself is not an absolute measure. ‘Adequacy’ might be met by circumstances which are barely adequate or more than adequate. ‘Adequacy’ is the relevant consideration, but the degree of adequacy may bear on the significance of that consideration.[14]
[13]DPP v Batich [2013] VSCA 53, [34].
[14]Ibid [36].
I accept that the Magistrates’ Court has adequate sentencing power to deal with this matter. However, it does not follow that the sentencing discretion should be exercised by that Court. Persons are routinely sentenced in the County Court, and less commonly in the Supreme Court, to sentences capable of being imposed by the Magistrates’ Court. The fact that the likely sentence is within the power of the Magistrates’ Court to impose does not mean the charges should be transferred to that court. It is only one matter to be taken into account.
Section 29(c) — whether a co-accused is charged with the same offence
There are five co‑accused in this matter. Two are charged with the far more serious offence of murder and will be tried in this Court. Leek has pleaded guilty in this Court to the same charges as those faced by the accused. The plea hearings of Ghebremichael and Amor Mangok are listed in the Magistrates’ Court. It is unfortunate that the criminal process has been fragmented in this way. It is preferrable that co‑offenders are dealt with by the same court for the same offending, and within a court, it is desirable that they are dealt with by the one judge.[15] In Lowe v The Queen, Brennan J stated succinctly:
To facilitate the comparison of conduct and antecedents it is desirable that, where practicable, co-offenders be sentenced by the same judge at the same time.[16]
[16]Lowe v R (1984) 154 CLR 606, 617 [3] (per Brennan J).
A sentencing judge must assess the circumstances of the offending, including the culpability of each offender. They must consider the personal circumstances of each offender, including matters such as age, criminal antecedents, background and character. They must evaluate the stage of the proceeding at which the offender pleaded guilty, their prospects of rehabilitation, their remorse and the need for deterrence, both general and specific. An assessment of all relevant matters, including any differences or similarities between co‑offenders, is best made by a single judge at a single hearing. Of course, this will not always be possible, but to the extent that it is, it should occur.
Where co‑offenders are sentenced in different courts, or by different judges, a number of difficulties can arise. Different judges may take differing views as to the seriousness of the conduct, making it difficult to apply the parity principle, and leading to a sense of dissatisfaction and grievance in the accused who receives the harsher sentence. At a plea hearing, factual disputes may arise as to the role played by a particular offender, which are best resolved by the same judge and preferably at the same hearing.
In my view, the co‑offender whose conduct most closely aligns with that of the accused is Leek. The accused and Leek were part of the same group of three. Together with the deceased, they initiated the attack on Abdelrahman. They face identical charges. They both sustained injuries during the altercation, and the extent to which this constitutes extra‑curial punishment will likely be agitated on the plea. Further, there may be some dispute as between the accused and Leek as to the relative seriousness of their offending and moral culpability. It is highly desirable that Leek and the accused are sentenced by the same judge.
Amor Mangok and Ghebremichael face a single charge of affray. They were part of the second group, and both kicked the deceased while he lay injured on the ground. Neither have any prior convictions; they were unaware of the presence of knives; and they attended in response to the assault upon Abdelrahman. It is less than ideal that their matters will be heard by a different court, however that is not a reason to further fragment the process by separating the plea hearings of Leek and the accused.
Section 29(2)(d) — any other matter that the court considers relevant
This is not a situation where purely indictable charges were originally laid and then withdrawn, and the remaining indictable charges are triable summarily. In such a situation, transfer may be appropriate, particularly if the remaining charges are significantly different and less serious. Here, the accused was only ever charged with the two offences to which he will now plead guilty. He elected to come to this Court on those two charges and the Court is now seized of the matter. It is fitting that his plea is heard in this Court and together with the plea of Leek.
I place no weight on the fact that Amor Mangok and Ghebremichael were granted summary jurisdiction for two reasons. First, that decision was not made by this Court, or necessarily a decision I would have made. I am largely unaware what was said at the hearing, and why her Honour was persuaded to grant summary jurisdiction. Second, based on what I do know, there are relevant differences between this accused and those two co‑offenders to which I have already referred.
In all the circumstances, I do not consider the charges are appropriate to be determined summarily. I refuse the application.
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See Taleb v The Queen [2020] VSCA 329, [1]; see also Dwayhi v R; Bechara v R [2011] NSWCCA 67,
[33]–[45] and the cases referred to therein.
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