Director of Public Prosecutions v Lukudu
[2018] VCC 1191
•3 August 2018
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication | |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-17-02061
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MICHAEL LUKUDU |
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JUDGE: | HIS HONOUR JUDGE GAMBLE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11 July 2018 | |
DATE OF SENTENCE: | 3 August 2018 | |
CASE MAY BE CITED AS: | DPP v Lukudu | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1191 | |
REASONS FOR SENTENCE
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Catchwords: CRIMINAL LAW - Sentence – Guilty Plea – Intentionally causing serious injury – Offender chased victim in public street before stabbing him with a knife multiple times in front of a number of witnesses – Victim sustained life threatening injuries for which he required hospitalisation and surgery – Psychological and emotional impact of offending ongoing – Offender aged 29 at time of offending and 31 at time of sentencing – Relevant but not extensive prior criminal history– Denied offending when interviewed – Plea entered at relatively early stage of proceedings – Offender suffering from undiagnosed PTSD condition at time of offending – PTSD not causally connected to offending and did not reduce his moral culpability for that offending – PTSD made offender’s experience of custody more onerous - Prospects of rehabilitation considered ‘moderate but guarded’.
Legislation Cited: Crimes Act 1958; Sentencing Act 1991.
Cases Cited: Nash v The Queen (2013) 40 VR 134; Dieu Chol v The Queen [2016] VSCA 252; DPP v Dalgleish (a pseudonym) [2017] HCA 41; (2017) 349 ALR 37; Tasevski v The Queen [2014] VSCA 135; Pitone v The Queen [2015] VSCA 5; Verdins v The Queen (2007) 16 VR 269.
Sentence: 9 years’ imprisonment with a non-parole period of 6 years and 9 months; Pre-sentence detention of 553 days declared; s.6AAA indication of 12 years with a non-parole period of 9 years.
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Mr D. Brown | Office of Public Prosecutions |
| For the Accused | Ms N. Karapanagiotidis | Stary Norton Halphen |
HIS HONOUR:
Introduction
1 Michael Lukudu, you have pleaded guilty to an indictment containing a single charge of intentionally causing serious injury. The maximum penalty for that offence is 20 years imprisonment.
2 At the relevant time, you were 29 years of age and your victim was 24. You turned 31 in May of this year. By way of brief overview, I note that in the early hours of Saturday 1 October 2016, you and another man confronted the male victim in a Noble Park street and then chased him for some distance. When you finally caught the victim, the two of you lost balance and fell. As he lay on the ground, you stabbed him multiple times and then fled the immediate scene on foot. The victim sustained life threatening injuries which required hospitalisation and surgery.
3 The full circumstances of your offending are set out in the typed prosecution opening which your counsel conceded could be treated as an agreed statement of facts for sentencing purposes.[1]
Circumstances of the offending
[1] Exhibit A.
4 Early the previous evening, you were at your Hallam flat drinking alcohol with a small group of friends. Shortly after your friend Longa Galuak arrived, you received a phone call from another friend named James Jal. He told you that he had organised a surprise party for his girlfriend and invited you and the others at your flat to the party, which was going to be held at a function venue in Ian Street, Noble Park later that night.
5 At about 11 pm, Mr Galuak drove you and the others to the party in your vehicle, arriving just before midnight.[2] The venue was situated in a small shopping strip.
[2] The vehicle was a black Holden Commodore.
6 At midnight, Mr Jal’s girlfriend Nyamoi Bol arrived at the party. There were approximately 50 guests in attendance. There was music, but alcohol was prohibited within the venue. As a result, a number of the guests moved back and forth between their vehicles and the venue to consume alcohol.
7 When the party finished at about 4 am, a large number of guests moved out onto Ian Street. At that time the victim, Dumisani Chengeta and his friends Michael Mealos, Galuak Thok, Duach Duach and Ben Chak arrived there intending to catch up with friends at the party.
8 After Mr Thok parked his car in Mons Parade at the southern end of Ian Street, the group joined the large number of guests who had gathered outside the party venue.
9 Mr Chengeta became aware that another friend, Joy Deu, was sitting in a Toyota parked in nearby Robert Street. She was with her cousin, Chatem Giek, another of Mr Chengeta’s friends.
10 He then met up with Chatem’s sister, Sarah, and the two of them then walked the short distance to the Toyota which was parked close to the intersection of Robert Street and Mons Parade. Mr Chengeta, Chatem Giek and Ms Deu then chatted in the Toyota for about five minutes. At one point, Ms Deu used Mr Chengeta’s mobile phone to call her boyfriend, as the battery for her own phone was flat. A short time later, Mr Maelos arrived with the intention of getting a lift home.
11 Mr Chengeta, Mr Maelos, Sarah Guiek and Ms Deu stood on the footpath next to the Toyota, talking and smoking cigarettes, while Chatem Giek laid down in the back seat.
12 When it began to rain lightly, Mr Chengeta provided his jacket to Sarah Giek and she asked him to accompany her back to the party so that she could return some shoes that she had borrowed from a friend. Mr Chengeta walked her to the party and then returned alone to where Mr Maelos, Ms Deu and Chatam Giek were located in Robert Street. After Sarah Giek returned the shoes, she began to speak to others in search of a lift home.
13 Mr Gai and Mr Lukudu then walked to the Commodore which was parked in a car park at the intersection of Ian Street and Mons Parade. As Mr Gai was a non-drinker, he volunteered to drive Mr Lukudu and his friends home. As
Mr Gai was driving he and Mr Lukudu out of the car park, Sarah Giek approached and asked for a lift home once she could retrieve her house keys from her sister Chatem.
14 Mr Gai then turned the car around and stopped in the middle of the road near where Ms Deu, Mr Maelos and Chatem Giek were standing at the Toyota. Sarah Giek then got out and walked over to the other group to obtain her keys. Mr Lukudu and Mr Gai remained in the Commodore, but were close enough to hear what any members of the other group were saying.
15 When Mr Chengeta and Mr Maelos decided to return to the party to get a lift home from Mr Thok, Sarah Giek returned Mr Chengeta’s jacket. After the two men said goodbye, they turned their backs on both groups and started to walk along Mons Parade.
16 Mr Lukudu and Mr Gai then got out of the Commodore. Neither of them knew Mr Chengeta or Mr Maelos. When Mr Gai then called out to Mr Chengeta, he and Mr Maelos turned around.
17 Mr Gai then said words to the effect “Do you know who I am?” That’s my cousin” or “Don’t mess with my cousin”. That was a reference to his cousin, Ms Deu. Both Mr Lukudu and Mr Gai were aggressive and yelling threats to Mr Chengeta and Mr Maelos, who, in response, simply tried to explain that they knew Sarah and Chatem Giek, and Ms Deu who was dating their best friend.
18 That did not placate Mr Lukudu and Mr Gai, however. They became agitated and moved closer to Mr Chengeta and Mr Maelos, who responded passively by backing away and attempting to reason with the other two men. They focused those efforts on Mr Gai as he had been doing most of the talking. At that point, Mr Lukudu threatened them, saying “I’m going to slash your throats”. When Mr Chengeta and Mr Maelos then looked at him, they noticed that he had his hand by his side and was holding a knife.
19 Mr Maelos then told Mr Chengeta to run and both men then ran along Mons Parade towards Ian Street. Mr Lukudu and Mr Gai then gave chase.
20 At the intersection of Mons Parade and Ian Street, Mr Chengeta turned right and ran into Ian Street while Mr Maelos continued running along Mons Parade towards the vehicle he had earlier arrived in. At that point, Mr Lukudu decided to ignore Mr Maelos and chase after Mr Chengeta.
21 A part of the pursuit along Ian Street was captured on CCTV. It shows that
Mr Gai was about a metre behind Mr Chengeta and Mr Lukudu approximately three metres further back. When Mr Gai kicked Mr Chengeta in an attempt to trip him over, Mr Chengeta lost his balance and fell onto the footpath. As a result, both of his pursuers caught up to him. Mr Chengeta then rolled on to his back and kicked out at Mr Gai and Mr Chengeta in an attempt to protect himself. Both men then punched him several times while he lay on the ground.
22 At that point, Mr Jal’s brother, John Jal, ran over and intervened. As Mr Gai knew Mr Jal’s family well, he agreed to stop.
23 When Mr Chengeta then got up and commenced to run away, he was pursued by Mr Lukudu. At that point, Mr Lukudu’s friend, Mr Galuak, saw what was occurring and tried to protect the victim by placing himself in between Mr Lukudu and the victim.
24 Mr Lukudu was undeterred by that intervention and continued to approach the victim who was backing away. Mr Galuak repeatedly pushed Mr Lukudu in the chest as he moved closer to Mr Chengeta. As that was occurring,
Mr Lukudu chased the victim around a bin on the footpath. That activity was also captured on a CCTV camera located in Ian Street.
25 Mr Gai then left, running away along Mons parade towards where the Commodore was parked.
26 At that time, Adi Majak and Mr Gai’s girlfriend were sitting in her car which was parked directly outside the party venue in Ian Street. Ms Majak heard the commotion and observed Mr Galuak standing between Mr Lukudu and
Mr Chengeta. She knew Mr Lukudu, but not Mr Chengeta. She, unlike
Mr Galuak and Mr Chengeta, was in a position to see that Mr Lukudu was holding a small knife behind his back. She heard Mr Galuak telling
Mr Chengeta to leave and Mr Chengeta respond, “Why should I leave, what have I even done?”.
27 When Mr Lukudu then moved closer to Mr Chengeta, the two men lost balance and fell to the ground outside a shop that was directly opposite the party venue. As a result, Mr Chengeta was laying on his back on the footpath with Mr Chengeta on top of him and Mr Galuak to his left side.
28 From that position, Mr Lukudu used the knife to stab Mr Chengeta eleven times in the abdomen, chest, right elbow and upper right leg.
29 Ms Majak got out of her car and yelled at him to stop. When Mr Lukudu then walked away, she and Mr Galuak helped the victim to his feet. It was only then that Mr Chengeta realised he had been stabbed in the stomach.
Mr Galuak put his arm around the victim and helped him to walk in the opposite direction from that taken by Mr Lukudu when leaving the scene. He asked the victim what had happened, but Mr Chengeta was confused and unable to reply.
30 Mr Galuak then left Mr Chengeta and returned to his friends. Mr Chengeta staggered back towards the party where he was assisted by his friends.
Mr Thok went and got his vehicle and, together with Mr Chak, Mr Duach and Mr Maelos, assisted the victim to get in and then drove him to the Dandenong Hospital.
31 Almost immediately after Mr Chengeta was driven away, Mr Gai picked up
Mr Lukudu in the Commodore. As he walked over to the car and got in,
Mr Lukudu said “Let’s go”. Mr Gai, who was unaware of the stabbing, suggested that they wait for Mr Galuak and Sarah Giek. Mr Lukudu responded by saying “Just go”. Mr Gai then drove him back to his flat in Hallam.
32 After they arrived at Mr Lukudu’s flat, Mr Gai noticed that Mr Lukudu was washing a small fold out knife at the kitchen sink. He asked him if everything was “all right”.
33 About 10 to 20 minutes later, Mr Galuak and Sarah Giek arrived at the flat.
Mr Galuak walked inside and confronted Mr Lukudu, saying “Michael, why the fuck did you do that, why did you stab that guy for?” Mr Lukudu replied, “What the fuck are you talking about, what guy?” Mr Galuak told him that he had seen him stab Mr Chengeta. Mr Lukudu then denied stabbing anyone.
Mr Galuak left a short time later, as he was concerned about what Mr Lukudu had done.
Investigation
34 At hospital, the victim was medically assessed and found to have sustained life-threatening injuries for which he was taken into surgery.
35 The police were notified and a crime scene was established. Photographs were taken and samples were obtained from a pool of blood at the site where the stabbing occurred.
36 On 4 October 2016, police attended at the hospital and spoke to
Mr Chengeta. He informed them that he did not know the two men who had confronted him and provided a description of the knife and the clothing worn by the man who stabbed him.
37 On 18 October 2016, Mr Chengeta contacted investigators and advised them that a friend had heard that one of the two males who assaulted him was
Mr Gai and had texted him a photograph which Mr Chengeta recognised as the unarmed assailant involved in the incident. He also advised police that he had been referred to a Facebook page which contained photos of a man he recognised as the one who had stabbed him and of the Commodore that was involved in the incident.
38 When investigators spoke to Mr Maelos, he advised them that he had seen the same Facebook material and recognised the male shown as the person who had chased them with the knife.
39 Investigators also learnt that the relevant call charge records of Mr Lukudu’s mobile phone, revealed that it had been used to contact Mr Galuak’s mobile phone at 1.20 am on 1 October 2016. The relevant phone tower for that call was located 100 metres from Ian Street, at Noble Park Railway Station.
40 On 10 January 2017, investigators released a photograph of the Commodore to the media. The following day, Mr Lukudu advertised his Commodore for sale on his Facebook page and the vehicle was sold two days later.
41 On 24 January 2017, Ms Majak called Mr Gai and advised him that she wanted to talk to him about the “Michael Laso” incident because the police had just been to her house to talk to her about it. Mr Gai informed her that
Mr Lukudu had “sold his car anyway” and that “it wasn’t even a big knife”.
Injuries sustained by the Victim
42 Mr Chengeta was taken to Intensive Care where he remained for a number of days. He underwent open abdominal surgery to ascertain the extent of his injuries. That surgery revealed that there were a total of eleven stab wounds; seven to the abdomen, two to the chest, one to the upper right thigh and another to the right elbow.
43 One of the stab wounds to his chest, had penetrated his right lung and caused a pneumothorax and a collapsed right lung. That injury was treated by the insertion of a drain tube into his chest.
44 A portion of his stomach lining measuring approximately 3 to 4 cm in width was found to have been protruding from his abdomen.
45 During the course of his treatment, Mr Chengeta received nine blood transfusions, a frozen plasma transfusion and a platelet transfusion. Approximately forty staples were required to seal the injury to his abdomen. Sutures were used for the other injuries.
Arrest and Interview
46 Mr Lukudu was arrested by police at his flat on the morning of 27 January 2017. A search of a suitcase in that flat located a jacket. The relevant CCTV footage provided strong evidence that it was the same jacket that Mr Lukudu had been wearing during the incident involving Mr Chengeta.
47 Following the search, Mr Lukudu was taken to the Dandenong Police Station and interviewed. He denied being in Ian Street on the night in question and denied all involvement in the stabbing.
48 He also made a number of claims, including that he was at his Hallam unit with Mr Galuak and another friend on that night, that his friends borrowed his car to drive to a bottle shop in Chapel Street and only returned it at approximately 1.00 am, that the jacket seized in the search belonged to
Mr Galuak who had left it at his flat, and that he often packs clothing that he has not worn for a while in suitcases. He was unable to explain why his mobile phone connected with a tower in Noble Park at 1.30 am on 1 October 2017.
Pre-sentence detention
49 After being interviewed, Mr Lukudu was charged and remanded in custody where he has remained ever since.
50 At the time of the plea hearing on 11 July 2018, the relevant period of pre-sentence detention was 530 days. It is now 553 days, not including today’s date.
Timing of the Plea
51 This matter was listed for a contested committal hearing on 11 October 2017, but resolved on that day before any witnesses were called. I note that the resolution involved the prosecution withdrawing a more serious charge of attempted murder, in exchange for Mr Lukudu pleading guilty to the current charge of intentionally causing serious injury.
52 Mr Lukudu was first arraigned in this court on 16 October 2017. Later, the original plea date of 2 March 2018 had to be vacated. The plea hearing ultimately took place on 11 July.
Victim Impact Statement
53 In the victim impact statement made by Mr Chengeta on 15 February this year, he describes the physical and emotional impact that this offending has had on him in simple but powerful terms.[3]
[3] Exhibit B.
54 He was in pain and fatigued for months and had difficulty moving and sleeping. He had to exhaust his accumulated leave entitlements while he was recovering. He was not able to return to work until January 2017. He has experienced feelings of anger and frustration, as well as fear and anxiety. He has recurring nightmares in which he or someone close to him is being attacked. He now finds it difficult to interact with strangers and this has made social events less enjoyable. He will require plastic surgery for the extensive abdominal scarring.
55 Mr Chengeta also notes that this entire ordeal has impacted on the other members of his family who now become concerned for his welfare every time he leaves home.
Criminal Record
56 As is clear from the criminal record filed in this court, Mr Lukudu has a relevant, but not extensive criminal history.
57 As the result of seven court appearances, in the almost five year period between August 2006 and June 2011, he has been sentenced for twenty-four offences. Most of that offending related to driving and public nuisance/disorder type conduct. However, in August 2006, he was placed on a 12 month Good Behaviour Bond, without conviction, for six offences, including three of resisting police. More significantly, in April 2011, he was found guilty and placed on another 12 month bond for one charge of recklessly causing injury and one of assault with an instrument. The circumstances of that latter offending were explained by defence counsel at this plea hearing. He used a belt to discipline his younger 15 year old sister, causing injury that was later noticed and reported by one of her teachers.
Personal Circumstances
58 I will now outline your personal circumstances, Mr Lukudu.
59 You were born in Sudan and raised in a North Sudanese refugee camp by your parents with two older sisters, four younger brothers and two younger sisters. You are close to your siblings and consider your parents to be good people.
60 You were exposed to significant trauma in Sudan, including the killing of a relative. When you were 12, your family relocated to Cairo, Egypt. There, you were exposed to severe racism, abuse and physical violence. You believe that your negative experiences in Africa have affected you mentally and physically.
61 When you were 16, you and your family travelled to Australia where, for the first time, you felt safe. Your family settled in Noble Park. You have been an Australian citizen since 2007.
62 You left the family home when you were 20. For a short time, you worked with an uncle interstate, but returned to Victoria when you became homesick. As the eldest male child in your family, you felt a significant responsibility to provide for the family. But, you felt overwhelmed by the self-imposed pressure and abused alcohol as a means to self-medicate your depressive symptoms.
63 From a relatively long term, but intermittent relationship that you had with a woman named Jade, you have a six year old son with whom you were having regular weekend contact before your incarceration. The relationship with Jade ended in 2016, as a result of your alcohol abuse and low mood.
64 At the time of this offending, you were living in a rented flat with your cousin.
65 On your eventual release from custody, you plan to return to live with your parents.
66 You had little if any schooling in Africa, but managed to complete Year 12 of VCAL at Westall Secondary College. Following that, you commenced a Diploma in Welfare and Community Services at Holmesglen, but did not complete the course. Subsequently, you worked for a job agency in casual periods of factory and laboring employment.
67 Your abuse of alcohol commenced when you finished school. You drank heavily in an attempt to alleviate the pressure that you felt to provide financially for your family.
68 You have used cannabis twice weekly from about the age of 18.
69 You have difficulty sleeping without using drugs or consuming alcohol. You experience nightmares and feel anxious and depressed.
70 You returned to Sudan in 2013, but were re-traumatised when war again broke out. As a result, you had to flee the country. Your symptoms were aggravated and your use of drugs and alcohol increased.
71 You were assessed by the forensic psychologist, Dr Aaron Cunningham, on
2 July 2018. I have had regard to Dr Cunningham’s report dated 6 July, when determining the appropriate sentence in this case.[4]
[4] Exhibit 1.
72 In Dr Cunningham’s opinion, you presented with a diagnosis of Post-Traumatic Stress Disorder (“PTSD”), which stems from the trauma you witnessed and suffered in Sudan and Egypt, and which was aggravated by being subjected to assaults in Australia in the 12 month period leading up to this offending.
73 The history which you provided to Dr Cunningham included the following:
· You feel angry and perceive that people are talking about you maliciously;
· In the 12 months before committing this stabbing, you had been assaulted twice and, in that context, decided to carry a knife for self-protection;
· You were intoxicated on the night in question;
· Your cousin started the ‘fight’ and you were drawn into ‘the conflict’;
· The victim was aware that you had a knife;
· When you fell on top of him, you believed that the victim was going to grab the knife from you; and
· It was then that you decided to stab the victim in order to free yourself and to ensure that the victim did not stab you;
74 You told Dr Cunningham that you felt sorry and he considered that you understood that you had done the wrong thing. However, he was of the view that you had difficulty empathising with the victim concerning the emotional and physical consequences, and that the reason for that was your emotional disconnection and numbing resultant from your past trauma.
75 In regards to your current offending, he is of the view that your alcohol intoxication was the precipitating agent and that it is likely that the offence would not have occurred if you had been sober. In his opinion, the presence of your PTSD helps explain your violent behavior at the time of the offence as you have a tendency to over perceive the level of threat you are experiencing and to react in excess of what is appropriate.
76 Later in his report, Dr Cunningham stated as follows:
He believed the victim would grab the knife and so stabbed the victim to free himself. Individuals with [PTSD] have a tendency to over perceive the level of threat they are experiencing and react in excess of what is appropriate. In my opinion, Mr Lukudu’s offence behaviour illustrates his hypervigilence and hypersensitivity to threat and attack. However, in my opinion Mr Lukudu’s alcohol abuse was the precipitating agent in increasing his inhibition and impairing his judgement. In my opinion, Mr Lukudu’s offence behaviour may not have occurred were he sober. The presence of [PTSD] helps explain the violent nature of his behaviour whilst intoxicated. In my opinion Mr Lukudu’s alcohol abuse, combined with his [PTSD] contributed to his behaviour.[5]
[5] Exhibit 1, page 3.9-4.2.
77 He considers that your disorder means that you will continue to experience hypervigilance and an oversensitivity to threat in the community. Immediately following that opinion, Dr Cunningham went on to note as follows:
Combined with intoxication, Mr Lukudu would continue to present as a violence risk until his Post Traumatic Stress Disorder is treated.
78 In terms of treatment, Dr Cunningham recommended engagement with a psychologist experienced with trauma work, such as can be arranged through Foundation House or via a referral from his GP. Mr Lukudu needs to undertake weekly counselling sessions on a mental health care plan. The aim of such significant trauma based intervention, is to better manage his emotions and perceptions of threat and danger. He also considered that
Mr Lukudu would benefit from drug and alcohol rehabilitation and from maintaining stability through family support, accommodation and employment.
79 Dr Cunningham is of the view that Mr Lukudu has a number of protective factors that may reduce his risk and improve his chances for rehabilitation. He now has some insight into the seriousness of his mental health condition and is open to engaging with treatment and rehabilitation.
80 In an observation that has obvious relevance to the fifth limb of Verdins[6], Dr Cunningham states that it is likely that exposure to ongoing threat and trauma in a prison environment would aggravate Mr Lukudu’s PTSD symptoms.
Significance of PTSD Condition
[6] (2007) 16 VR 269
81 During the course of the plea hearing, counsel and I discussed at some length what the potential relevance and significance of the PTSD condition was.
82 I will now outline my findings in that regard.
83 I accept that Mr Lukudu has a PTSD condition presently and did so, albeit undiagnosed, at the time of his offending. I have no doubt that, as
Dr Cunningham noted, the condition stems from the trauma he witnessed and suffered in Sudan and Egypt.
84 The symptoms of that condition as described by Dr Cunningham included depression in the form of emotional disconnection and numbing, marked arousal in the form of hypervigilance, irritability and outbursts of anger, reckless and self-destructive behaviour, sleep disturbance and difficulty concentrating.[7]
[7] Exhibit 1, page 2.9-3.1.
85 In light of those symptoms and Dr Cunningham’s diagnosis and associated opinions, I am satisfied that it is appropriate to take such matters into account in a general way as part of the essential background and personal circumstances of Mr Lukudu.
86 I am also satisfied that the defence have established, on the balance of probabilities, that the fifth limb of Verdins has been engaged. That is, that
Mr Lukudu’s experience of imprisonment has been, and will continue to be, more onerous than for prisoners who do not suffer from a PTSD condition.
87 The more contentious issue relates to whether the defence can establish a causal connection between Mr Lukudu’s PTSD and his commission of this offence, such as to warrant a reduction in his moral culpability. In accordance with well-established sentencing principles, the defence bear the onus of establishing such a mitigating factor and must do so on the balance of probabilities.
88 Essentially, defence counsel, Ms Karapanagiotidis, relied on the contents of Dr Cunningham’s report, including the history given by her client, his description of how he was feeling at the relevant time on that night, and the diagnosis and further opinions expressed by Dr Cunningham, the important aspects of which I have outlined in my sentencing reasons.
89 Having carefully considered the circumstances of what occurred on the night in question, from the moment that Mr Gai and then Mr Lukudu first spoke to the victim and his friend and right through to the stabbing itself, and after having considered Dr Cunningham’s analysis of the matter, I am not satisfied that the defence have discharged the burden that rests upon them.
90 It seems to me that Dr Cunningham simply accepted, at face value, the descriptions and account that Mr Lukudu gave him. For example, he recounts that Mr Lukudu told him that “his cousin started the fight…[and] he was then drawn into the conflict”.[8] In my view, it is a complete misdescription on
Mr Lukudu’s part to have referred to any part of the incident as a fight or a conflict. Such terms suggest that both sides were playing an active, and even a physically, or verbally aggressive part. That was not the case here, far from it.
[8] Exhibit 1, page 3.2. (emphasis added).
91 The only aggression came from Mr Gai and Mr Lukudu. That aggression commenced with Mr Gai verbally confronting the victim and his friend, telling them not to mess with Mr Gai’s female cousin. Both he and Mr Lukudu then became aggressive, yelling threats to the two men. After Mr Lukudu and
Mr Gai moved closer to the other two men, Mr Lukudu, while holding a knife, told the other men that he was going to slash their throats. Up until that time, neither the victim nor his friend had acted aggressively towards Mr Lukudu or Mr Gai. In fact it was the opposite; they calmly tried to explain how they knew Mr Gai’s cousin and the other females in her group and tried to placate any concerns that Mr Gai had.
92 What occurred thereafter was a concerted chase of the fleeing victim by
Mr Gai and Mr Lukudu together, initially, and then by Mr Lukudu alone. When they caught him, they assaulted him and he merely tried to keep them at a safe distance by kicking out. Then, after a further chase by Mr Lukudu, the two men ended up on the ground and then once he was in a position of physical superiority over the victim, Mr Lukudu immediately launched a savage, cowardly and sustained attack on the victim with the knife. At no stage during that attack was the victim likely to have been in a position to ‘turn the tables on Mr Lukudu’ and certainly not, in my view, by means of taking control of the knife that Mr Lukudu was wielding with such ferocity. It will be clear from what I have already said, that I simply do not accept the account that Mr Lukudu gave to Dr Cunningham, to the effect that he was afraid that the victim was going to get the knife and use it to stab him.
93 In my view, the facts which are critical to the formulation of Dr Cunningham’s opinions on this issue are not made out and as such, his reasoning process is flawed and should not be accepted. A critical pre-condition to Mr Lukudu “over perceiving the level of threat” he was experiencing, is that there had to be some level of threat in the first place. In a similar vein, in order to be able to “act in excess of what is appropriate” there must first be some basis to act at all, and that relies on there being some level of threat being posed by the victim towards Mr Lukudu.
94 Ultimately, I am of the firm belief that there was never any verbal or physical aggression engaged in by the victim or his friend towards Mr Lukudu and, accordingly, I reject any suggestion that Mr Lukudu acted as he did on this night out of some belief that he was under threat. There was no threat to “over perceive” and no reason to “react in excess of what is appropriate”.
95 Accordingly, whilst I accept that Mr Lukudu had an undiagnosed and untreated PTSD condition at the relevant time, I do not accept that it was causally connected to his commission of this offence. Rather, in light of all the circumstances I do accept, including what was said and done when the victim and his friend were first confronted and threatened by Mr Gai and Mr Lukudu, I consider that the offence was committed in circumstances where Mr Lukudu shared Mr Gai’s belief about how the victim and his friend may have been behaving towards Mr Gai’s cousin, and he was disinhibited by the amount of alcohol he had consumed that night.
Other matters in mitigation
96 Mr Lukudu, your counsel was able to rely on a number of matters in mitigation on your behalf, some of which I have already referred to.
97 You pleaded guilty to this offence at what I regard to be a relatively early stage in these proceedings. By taking that course when you did, you have spared the community from the cost and time of a trial and, importantly, spared the victim and witnesses from the ordeal of having to give evidence and thereby relive their ordeal. On account of those benefits, you are entitled to a relatively significant discount in your sentence.
98 The issue of remorse is a nuanced one, however. Your initial denial of wrongdoing to your friend Mr Galuak, and your later denials and patently false claims in the record of interview, indicate that you were not then remorseful or prepared to take personal responsibility for what you did. I accept, however, that your later decision to plead guilty shows that you have latterly taken responsibility for your criminal conduct and displayed some remorse. But, I must also note that the degree of remorse in your case appears limited and is certainly not strong.
99 At age 31, you fall to be sentenced for a very serious offence of violence in circumstances where, until the commission of that offence, you had a limited criminal history for violence and certainly nothing of this magnitude.
100 You have strong and ongoing support from your family. Your sister attended at the plea hearing as the family’s representative and provided the court with a letter in which she describes you as a good father and family man.[9] She also confirms that you have been exposed to violence and death in your country of birth, Sudan, including as recently as 2013. Your sister also informed the court that she, and the rest of your family, will continue to support you strongly in the future, just as they have in the past
[9] The letter was tendered as exhibit 4.
101 You have indicated that your young son provides you with motivation to lead a more positive life on release from custody.
102 Through no fault of yours, you have been exposed to considerable trauma in your formative years, resulting in you developing a serious psychological condition, namely PTSD. It would seem that your condition went undiagnosed and untreated for some years.
103 Now that you are aware of your PTSD, you have expressed a willingness to engage in the necessary treatment, which is a good thing.
104 You have tried to put your time on remand to good use.[10] For example, you have undertaken a number of courses whilst on remand, including two 12 hour substance use programs, dealing with substance use and developing a healthier lifestyle, and a managing loss program. Through Box Hill and Kangan Institutes, you have also undertaken a number of educational courses designed to enhance your future employment prospects. I am prepared to accept that you have abstained from alcohol and drug use whilst in custody.[11]
[10] See bundle of certificates tendered as exhibit 2 on the plea.
[11] A single negative assay result for a urine sample provided by Mr Lukudu on 15 June 2018 was tendered as exhibit 3.
105 This is the first time that you have been in custody. I accept that, for a number of reasons, your time on remand has been difficult for you, just as the remainder of your sentence will be. In that context, I accept that the diagnosis of PTSD provides a sufficient evidentiary basis to enliven the fifth limb of Verdins. Given that condition, your exposure to the ongoing threat and trauma of a prison environment has, and will continue to mean, that your experience of gaol is more burdensome than for prisoners who enjoy sound mental health. I have taken account of that fact when determining the appropriate sentence to impose in this case.
Objective gravity of the offence of ICSI
106 This court must also have regard to the objective gravity of the offending. In that context, I make clear that the conduct concerned here is confined to the stabbing itself. The preceding aggression towards the victim engaged in by both Mr Lukudu and Mr Gai, has been referred to only so as to provide a full and realistic context in which to assess the conduct which forms the basis for the charge of intentionally causing serious injury.
107 As a type of offence, intentionally causing serious injury is inherently very serious. So much is clear from the elements of the offence and the very high maximum penalty fixed by Parliament, 20 years’ imprisonment.
108 In terms of assessing the gravity of any offence of intentionally causing serious injury, the often quoted case of Nash v The Queen[12] is of considerable assistance. In that case, and after consideration of a number of relevant authorities, Maxwell P referred to a non-exhaustive or prescriptive list of factors that were routinely taken into account by sentencing judges in assessing the gravity of particular instances of this type of offence.[13] Those factors were:
[12] (2013) 40 VR 134.
[13] Ibid, at [10].
· The offender’s proven intent: was it to cause serious injury, or really serious injury, or the maximum possible injury;
· The seriousness of the injury actually caused (both the immediate and long-term consequences for the victim);
· How vulnerable the victim was;
· Whether a weapon was used;
· How long the attack on the victim lasted; and
· Whether the offender acted alone or in company.
109 As was noted in the subsequent case of Dieu Chol v The Queen,[14] the decision in Nash provides a useful framework for assessing the gravity of a particular case and ordinarily the offender’s intent and the seriousness of the injury sustained by the victim will be the key indicators of seriousness of an offence of intentionally causing serious injury. And, the presence of one or more of the other factors would likely aggravate the seriousness of the offending.[15]
[14] [2016] VSCA 252.
[15] Ibid, at [6].
110 For reasons which I will soon explain, I am satisfied that the combination of circumstances relating to this offending mark it as a very serious example of its type. I note two matters at the outset. First, I have no doubt that in acting as he did, Mr Lukudu intended to cause the victim not just serious injury, but very serious injury indeed. Second, the serious injuries suffered by the victim were grave and life threatening, and the emotional and psychological consequences for him have been substantial and ongoing.
111 Among the reasons for this instance of the offence being a very serious example of its type are the following:
· The offender displayed a very aggressive and threatening attitude towards the victim from the very outset;
· The offence was not spontaneous, but rather carried out after a persistent and concerted effort by the offender to catch and confront the fleeing victim;
· Before stabbing the victim, the offender ignored repeated attempts by the victim and others to curb his aggression towards the victim;
· The offender attacked a prostrate and entirely defenceless victim who had, until that point, simply been trying to placate him;
· The offender used a deadly weapon, namely a knife;
· In the course of a vicious and protracted attack, the offender delivered very many blows, most of which were directed at vital areas of the victim’s body;
· In acting as he did, the offender must have intended to cause very serious injury indeed;
· The serious injury actually caused was of a life threatening nature and has significantly impacted on the victim’s quality of life; and
· The offence was carried out in a public place and in full view of a number of witnesses who could be expected to be, and no doubt were traumatised by what they saw.
112 In light of the above, I consider Mr Lukudu’s level of moral culpability for this offence to be very high indeed.
Current Sentencing Practices
113 As required by s.5(2) (b) of the Sentencing Act 1991, I must have regard to current sentencing practices for this type of offence. But, as the High Court recently observed in DPP v Dalgleish (a pseudonym)[16], it is but one of a number of relevant considerations along with the applicable maximum penalty, and is not determinative.
[16] [2017] HCA 41; (2017) 349 ALR 37.
114 Apart from the usual limitations implicit in any consideration of sentencing statistics and other cases, is the fact that there is a wide range of circumstances in which this type of offence can be committed and therefore, a resultant broad spectrum of punishment.[17]
[17] See for example, Nash v The Queen (2013) VR 134, [55] (Priest JA); Tasevski v The Queen [2014] VSCA 135, [54] (Tate JA); Picone v The Queen [2015] VSCA 5, [7] (The Court) (Priest and Beach JJA).
115 I have taken account of the most recent sentencing snapshot, the cases referred to in Nash v The Queen and the summary of cases prepared by the Judicial College.
116 The very recent sentencing statistics published by the Sentencing Advisory Council provide some assistance. But, as with any sentencing statistics, there is a lack of important detail regarding such matters as the circumstances of the offence, including any aggravating and mitigating features present, and of the offender, including whether the plea entered was guilty or not guilty. When considering this material, I have borne in mind the repeated cautions which the Court of Appeal have sounded about such material.
117 As the sentencing snapshot for intentionally causing serious injury published in June this year makes clear, in the five year period from 2012-13 to 2016-17, 276 people were sentenced in the higher courts for a principal offence of intentionally causing serious injury. Of those, 91% were given an immediate custodial sentence. Of the 229 people who received a principal sentence of imprisonment, 219 received a non-aggregate term of imprisonment. The length of those terms ranged from two months and 24 days to 12 years, while the median length of imprisonment was five years.[18]
[18] Sentencing Snapshot No. 213.
118 I have also had regard to the Judicial College of Victoria’s summary of Victorian Court of Appeal cases involving intentionally causing serious injury from 2013 to the present.
119 As is always the case, there are obvious points of difference between other cases and the one at hand, both as to the circumstances of the offending and the offender. Those differences can cut both ways and are often of significance. That is certainly the case here.
120 Again, as the Court of Appeal have frequently noted, consideration of other cases is of limited assistance. No two cases are ever identical or on all fours. And, the sentence imposed in another case should not be assumed to be the only available sentence that was open to that sentencing court. Almost always, it is but one of a number of sentences that were open to impose when regard is had to the available range.
121 In the end, this court must deliver individualised justice by having regard to the particular circumstances of this offending and this offender, as well as the relevant sentencing principles that arise for consideration. And, that is what I propose to do in this case.
Sentencing of Mr Gai
122 For completeness sake, I should say something about what has transpired in relation to the second assailant Mr Gai. As I have already noted, he was involved in the initial chase and physical assault on the victim, but had nothing to do with his stabbing.
123 He was charged by police with unlawful assault. That charge was put to the court which sentenced him in July 2017, on the basis that it encompassed and was limited to, the punching of the victim that he carried out in company with Mr Lukudu in the early part of the incident.
124 After pleading guilty to that charge, he was convicted and fined the sum of $1500 by the sentencing magistrate.
125 At that time, Mr Gai had a relevant but not overly extensive criminal history.[19] The previous offending which involved violence included an offence of intentionally causing injury (2014) and two of recklessly causing injury, (2011 and 2015).
[19] Exhibit C.
126 Given the differences in the nature and seriousness of the disparate charges faced by Mr Lukudu and Mr Gai, defence counsel in this matter understandably did not seek to invoke or rely in any material way on the sentencing principle of parity.
Relevant Sentencing Principles
127 For obvious reasons, general deterrence, denunciation and just punishment assume considerable importance in this case.
128 Patently, the use of dangerous weapons to seriously injure innocent members of the public is regrettably common and causes considerable community fear and disquiet. As such, the community has a justifiable expectation that when offenders who commit such serious offences are caught, they will be dealt with sternly by the courts who sentence them, not just in order to vindicate the values of that community, but also to act as a strong deterrent to other would-be offenders who are contemplating offending in a similar manner.
129 Specific deterrence also has an important role to play in this sentencing exercise given the very serious and disturbing nature of this offending by
Mr Lukudu.
130 For similar reasons, I consider that there is a real need to give some weight to the protection of the community from Mr Lukudu.
131 This court must also punish Mr Lukudu in a manner and to an extent that is just in all the circumstances. Given the nature and gravity of this offending, any such punishment needs to be substantial.
132 This court must also have regard to Mr Lukudu’s age and prospects of rehabilitation. In the end, doing the best that I can with the material available, I consider Mr Lukudu’s prospects of rehabilitation to be moderate but guarded.
Sentencing submissions
133 In her sentencing submissions, Ms Karapanagiatidis conceded that this offending was serious and warranted a term of immediate imprisonment. Implicit in what she said, however, was the submission that any such sentence should be kept to the minimum and allow Mr Lukudu the opportunity to be released on an extended period of supervised release on parole, so as to provide him with the necessary assistance and reduce his chances of reoffending.
134 Mr Brown, counsel appearing on behalf of the Director, pointed out a number of the serious aspects of Mr Lukudu’s offending and addressed some of the relevant sentencing principles to which this court must have regard. He submitted that nothing short of a substantial custodial sentence comprising a head sentence and non-parole period was appropriate in the particular circumstances of this case.
Analysis
135 In my view, nothing short of a substantial sentence of imprisonment is warranted in this case. To do otherwise, would fail to accord due weight to a number of important sentencing principles, such as deterrence and denunciation, and would fail to justly punish Mr Lukudu for the serious criminality in which he engaged on this occasion.
136 I will allow for the opportunity for release on parole in the interests of encouraging and fostering Mr Lukudu’s chances of rehabilitation. But, there is a limit to what this court can do in terms of fixing the point at which he can be first considered for release from custody. That period should not be so short, or so disparate with the head sentence, that it undermines the necessary deterrent and punitive aspects of the sentence.
Sentence
137 Having carefully considered, balanced and weighed the various sentencing considerations raised by this case, I have decided to sentence Mr Lukudu as follows:
138 On Charge 1, intentionally causing serious injury, nine years.
139 In respect of that head sentence, I fix a non-parole period of six years and nine months.
Pre-sentence detention
140 The period of 553 days pre-sentence detention, not including today’s date, is hereby declared as having already been served in respect of this sentence and I order that such declaration and its details be entered in the records of the court.
Section 6AAA declaration
141 Pursuant to s.6AAA of the Sentencing Act 1991, I indicate that had Mr Lukudu pleaded not guilty to this charge, and been convicted of it at trial, he would have been sentenced to a total effective sentence of 12 years with a non-parole period of nine years.
Other Matters
142 Counsel, are there any matters that either of you wish to raise at this stage in respect of either the sentence or reasons for sentence?
143 MR BROWN: No, Your Honour.
144 MS KARAPANAGIOTIDIS: No, Your Honour.
145 HIS HONOUR: Very well. Mr Lukudu can now be taken downstairs, thank you.
146 MS KARAPANAGIOTIDIS: Your Honour, would I just be allowed to, given I'm - given I will see him, but given I'm going to another court immediately - - -
147 HIS HONOUR: Yes, certainly.
148 MS KARAPANAGIOTIDIS: - - - just for one moment? Thank you. Thank you, Your Honour.
149 HIS HONOUR: Yes, adjourn the court sine die at this stage, thank you.
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