Director of Public Prosecutions v Majok
[2023] VCC 221
•17 February 2023
| IN THE COUNTY COURT OF VICTORIA AT melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| GENERAL LIST |
Case No. CR-21-01105
Indictment No. L12507758.1
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SUZIE MAJOK |
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JUDGE: | HIS HONOUR JUDGE DOYLE | |
WHERE HELD: | Melbourne | |
DATE OF PLEA AND SENTENCE: | 17 February 2023 | |
CASE MAY BE CITED AS: | Director of Public Prosecutions v Majok | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 221 | |
REASONS FOR SENTENCE
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Subject:Criminal Law – Sentence
Catchwords: Guilty plea following sentence indication – one charge of recklessly causing serious injury – offending in the context of excessive self-defence – offending in the context of a history of family violence – Limbs 5 and 6 of Verdins – relevant criminal history
Legislation Cited: Crimes Act 1958; Sentencing Act 1991
Cases Cited:Worboyes v The Queen [2021] VSCA 169;
Sentence: Community corrections order for a period of 30 months.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr A. McKenry | Solicitor for the Office of Public Prosecutions |
| For the Accused | Mr B. Johnson | Emma Turnbull Lawyers Pty Ltd |
HIS HONOUR:
1Suzie Majok, you have pleaded guilty to one charge of recklessly causing serious injury, which carries a maximum penalty of 15 years' imprisonment.
2You were born on in May 1993 in Sudan. You were 27 years old at the time of the offending. You are now 29 years old. You were living at a unit in St Albans, with your two children, Lavinia, aged six then, and Mac, aged 5.
3The victim in this matter was born in March 1983. He is your ex-partner. You and he had been in what is described as an on again/off again relationship for approximately a year up until March 2020 when you separated. He had moved back into your unit some three weeks before the offending.
4The relationship with him was an unsatisfactory one, which featured domestic violence on occasions perpetrated by him against you, and it was conceded by the prosecution that the offending in this case occurred in the context of excessive self-defence.
5
The circumstances of your offending were outlined in a document titled
Crown Opening for Sentence Indication (Agreed by the Parties) dated 17 May 2022, which was read in open court today by Mr McKenry. I heard a previous sentence indication in this matter in January, at which the prosecution indicated their position on the community correction order was open in response to the defence submission for a community correction order. You were arraigned on a subsequent day, I think 27 January, and I ordered a community correction order assessment report on that date which I have since received. I have also been provided with a mental health advice and response service report as well. The circumstances of the offending were set out in that sentence indication document.
Circumstances of the offending
6On the morning of Thursday 29 October 2020, you were at home with the victim and your two children. You were arguing with the victim, and he then went outside to have a cigarette.
7At approximately 8.53am you dropped your children at the Good Start Early Learning Centre in Kealba, then you went to Food Works in St Albans and bought nappies, but also alcohol.
8At around 2.30pm a man named Johnny Maples was getting out of his vehicle, parked in the driveway of the St Albans unit two doors down. He saw you in your car, parked on the road opposite his unit, and he saw the victim walking along the footpath towards him. You reversed your vehicle, rolled down the window and called out to Mr Maples. You said to him, 'Johnny, could you tell him to quit pacing up and down the street', then you then drove off.
9At around 6.14pm you returned to the Early Learning Centre in Kealba to collect your children.
10At around 7.30pm again Mr Maples was in the driveway of his unit, about to take his son for a driving lesson. He saw the victim in the driveway of your unit and handed him two cigarettes that he had requested earlier. He said that you could park your car on the nature strip in front of his address.
11You returned home, fed the children, and you put them to bed at about 8.00pm.
12Between 8.45pm and 9.00pm the victim phoned Mr Maples and thanked him for allowing you to park the car on the nature strip. You and the victim then began drinking in the lounge room. An argument followed, which became physical. When the altercation ended the victim went outside of the unit to take out the bin.
13After he returned to the lounge room you and he began arguing again. The argument became physical, during which you took hold of a knife. During the physical altercation you stabbed the victim with the knife you had in your hand. As a result of the stabbing, you cut open his stomach. He only realised that you had possession of the knife when you cut him.
14He looked down and he saw his intestines protruding from his stomach. He then asked you to call Triple 0.
15At approximately 9.22pm you called Triple 0 on your mobile phone and asked for an ambulance. You said the following:
· 'Someone is stabbed, they’re about to die', and
· 'My ex-boyfriend is here, and I got him stabbed him by the knife. I stabbed him with the knife', and you said -
· 'His stomach is out'.
16At around 9.30pm, police arrived and found the victim on a bed in a rear bedroom of the unit. He was holding his stomach and lying in a small pool of blood with his bowel protruding through the cut in his stomach.
17You were arrested by police, and you said, 'It was a knife. I don’t know where he put it. He took it. He went off and then came back. I'm looking for it'.
18Police searched the unit and saw two knives with black handles on a small drawer inside the children's bedroom.
19Ambulance paramedics arrived and assessed the victim, noting a 10-centimetre section of bowel which was visible. Due to his obvious life-threatening injuries the victim was taken to the Royal Melbourne Hospital. He remained in hospital for around 5 days.
20You had some injuries as well, including swelling and lacerations to your right eyebrow and left forearm, and you were taken to the Footscray Hospital for treatment.
21You were discharged the following morning, which was 30 October 2020, and taken to Sunshine police station. On that day, police returned to your unit and took photographs and seized exhibits, including various knives.
Record of interview
22When you were interviewed at Sunshine you told police you only had two knives at the house and did not know which knife you had used.
Medical opinion
23The prosecution opening contains a summary of the evidence of Dr Moller, a forensic physician who reviewed medical notes in relation to you and the victim. With respect to your injuries, he said they were consistent with:
· a laceration and bruising to your left eye, which was consistent with blunt force from a blow or a fall;
· an injury to your left arm which had features of a bitemark, although other causes were possible;
· sustained abrasions caused by blunt force and movement to your back, and
· tenderness to your right abdomen and neck; trauma was a possible cause of those injuries.
24The victim required a transfusion of two units of blood and immediate abdominal surgery, where surgeons found two holes in his bowel, a moderate collection of blood in the fold of the tissues that connect the bowel to the abdominal wall. He required the removal of 20 centimetres of bowel.
25He sustained a penetrating incised wound to his abdomen causing two defects in his bowel, significant bleeding from abdominal vessels and muscle and associated low blood pressure indicating haemodynamic compromise.
26He also sustained a fracture to the right jaw caused by blunt force trauma such as a blow or a fall, but that is not part of the serious injury relied on by the prosecution.
27Dr Moller said without medical intervention he would certainly have died, either from blood loss or overwhelming infection related to spillage of bowel contents.
Personal circumstances
28Your personal circumstances were outlined in the defence submissions and also in the psychiatric report of Dr Nicholas Owens dated 20 January 2023, which has been tendered as an exhibit on the plea.
29You were born in Khartoum, Sudan. You are now 29 years old. You left Sudan when you were seven years of age and moved with your family to Egypt. You travelled back and forth between Sudan and Egypt before settling in Australia when you were 10 years old.
30Your biological father was in the Sudanese Army. He died some time around 2015 as a result of a chronic illness following an accident. You had only ever spoken to him on the phone despite plans to meet with him before he died. Your mother is now in her fifties and works in disability care. She is well respected in the community.
31You have one biological brother, David, who is aged 27; two half brothers who are aged 22 and 15, and a half sister who is now nine years old. You told Dr Owens that you took on the role as a second mother really to your siblings. You reported that your mother physically and emotionally abused you, and your stepfather would hit you. You said when you were aged six your mother told you she would stop hitting you if you said you had been touched by a babysitter. You say that at around that age a relative of your stepfather attempted to sexually assault you, and you struck him with a rock. You told Dr Owens that after this happened everyone 'beat you up and said you were lying'.
32Growing up, you spoke Dinka, Arabic and English. You enjoyed primary school and you were educated both in Africa and in Australia. You attended secondary school at Catholic Regional College St Albans. You were average academically and you were suspended from time to time for fighting with other students. For you, you said school was a better place to be than at home.
33You do have problems with alcohol, and you began drinking at the age of 18. You have a history of alcohol abuse and report that at times you would drink two bottles of wine daily to the point of passing out. You had counselling for your drinking in 2017 and 2018. You say you have not consumed any alcohol now for months. You say you have never used drugs.
34You have three children, Bul aged ten; Lavinia aged six, and Mac aged five. You separated from Bul's father, a man named Deng, in 2014. You describe that Bul's father kidnapped him for some two years before returning him to you, and that after that Bul went to live with your mother. Apparently, he now lives with his father in Canberra, and you have not seen him for over a year.
35You had another relationship with a man named Philip Athol, who is the father of Lavinia and Mac, but you separated after Lavinia was born.
36You describe your former partners as being physically violent and sexually abusive. On occasions you say when you sought police assistance the abuse would only escalate.
37You met the victim around 2018. He also had problems with alcohol, and soon after meeting him you commenced a relationship. You describe him also as being physically and sexually abusive, and you said as much to Dr Owens. It is dealt with in his report.
Gravity
38Recklessly causing serious injury is a very serious offence, as reflected by the maximum penalty of 15 years' imprisonment. Additionally, your conduct can be characterised as violence against your intimate partner or domestic violence. The Court of Appeal has repeatedly emphasised the need for general deterrence and denunciation of intimate partner or domestic violence offences, and clearly this was a serious offence which caused a life-threatening injury. Even with medical intervention the risk of death in this case was substantial; without that intervention death was certain. I regard this as a very significant serious injury.
39The victim said in his statement that he thought he was going to die, and indeed he would have had he not received immediate medical attention. He was completely vulnerable and reliant on you for help. Fortunately, in these circumstances you rang Triple 0 immediately. If you had not, he would have died. This must have been an extremely frightening experience for the victim, and it takes no imagination to understand that there is the potential of ongoing psychological harm from such circumstances.
40Ordinarily a stabbing causing a life-threatening injury of the seriousness involved here, occurring in a domestic violence setting, would be met with an immediate custodial sentence of some significance but there are matters in this case which, in my view, substantially reduce your moral culpability.
41Whilst your use of a knife was disproportionate to the situation in this case, I accept the injury was caused by a single blow with no pre-meditation or planning involved. The stabbing occurred during a physical altercation between you and the victim where you were both alcohol affected. It is not clear how this altercation started but in your relationship with the victim, alcohol-fuelled violence was not uncommon. I accept, as I have said, the offence occurred against a background of domestic violence incidents in which you were the victim. The particulars of incidents where you have been the victim of domestic violence are set out in the defence sentence indication submissions. I will not describe those events again in detail but I have had regard to those matters. There is no issue taken by the prosecution in this case that there were instances of violence from the victim towards you. The background of the relationship and the prosecution concession, which I accept, that this was a situation of excessive self-defence are very important mitigating circumstances in this case.
42Further, although you accept by your plea that you foresaw a serious injury at the time you stabbed the victim, I accept this was nonetheless an impulsive act.
43Crucially you did phone Triple 0 straight away and you were cooperative with police when they arrived.
44I take all these mitigating factors into account in assessing the objective gravity of this offence, and I have formed the view that your moral culpability is reduced to a significant extent by comparison to cases generally involving stabbings to a highly vulnerable area of the body.
Guilty plea
45It is very important that you pleaded guilty in this case following a sentence indication on 23 January 2023 where I indicated that I thought a correction order could be imposed for this offending. You accepted this indication and you were arraigned on 27 January. Your plea has significant utilitarian value. You have saved this court the resources and the time involved in running a trial.
46Your plea has heightened utilitarian value given the backlog of cases caused by the pandemic, and I apply the principles recognised in the decision of Worboyes[1] relating to the increased utilitarian value of a guilty plea in the current circumstances.
[1]Worboyes v The Queen [2021] VSCA 169
47I also accept your plea indicates a level of remorse and a willingness to facilitate the course of justice. In all the circumstances you are entitled to a palpable amelioration of the sentences to be imposed.
48It is also submitted the guilty plea is more significant because there was a reasonable prospect of acquittal. I accept that.
Psychological history
49Your psychological disposition is set out in the report of Dr Owens and also in the Forensicare mental health assessment. You have been diagnosed with complex post-traumatic stress disorder.
50Today, Mr Blake, on your behalf, read to me the relevant paragraphs of that report, paragraph 100 and paragraph 101, which he submits show a relevant causal connection to the offence in this case and that the complex post-traumatic stress disorder interacts with your very difficult background so as to reduce your moral culpability for the offending in this case. Additionally, he submitted that I should moderate both general and specific deterrence as principles of sentencing. The prosecutor Mr McKenry accepted the application of those principles.
51Further Mr Blake submitted that principles 5 and 6 of Verdins are applicable in that your psychiatric state would increase the burden of any period of imprisonment and a period of imprisonment would entail a significant risk of an adverse downturn in your mental health of a significant nature. Again, Mr McKenry did not take any issue with those submissions.
52As I say, your complex post-traumatic stress disorder has to be looked at against a backdrop of a long history of physical and sexual assaults in your childhood and your relationships.
53Dr Owens referred to your medical records from Western Health which show numerous presentations at emergency departments for mental health issues and following family violence related injuries going back to 2014.
Prior convictions
54You do have a relevant criminal history relating to assault charges.
55You have been on community correction orders before which you ultimately complied with, although there was a contravention in respect of the initial community corrections order in 2017.
56It is unfortunate that those previous correction orders have not resulted in you addressing some of the underlying problems that have caused your offending and they do affect my assessment of your prospects of rehabilitation, but having regard to the circumstances of this offence as I have outlined and your reduced moral culpability and a moderation of general and specific deterrence, I form the view that they do not disqualify you from a further community correction order.
Prospects of rehabilitation
57Your prospects of rehabilitation are difficult to assess. The Corrections assessment report indicates that you are a high risk of general reoffending. Still, it seems to me that if you can address your alcohol problems there is reason to be optimistic about your prospects of rehabilitation and leading a life that does not involve any further offences of violence.
Delay
58I also take into account it has been over two years now since the commission of this offence, a significant period of uncertainty for you with a period of imprisonment hanging over your head. I take into account the punitive effect of delay as one of the many matters I must take into account in sentencing in this matter.
Submissions
59The defence submissions both at the sentence indication and today has been that a community correction order should be imposed in the circumstances of this case.
60Mr McKenry indicated for the prosecution a community correction order is open on the unusual facts of this case. That is what I intend to do in this matter.
61I have had regard to the objective gravity of the offending which is significant but is moderated by the surrounding circumstances. I have also had regard to your moral culpability which is substantially reduced for all the reasons I have outlined in these remarks.
62I have considered the reduced need for general and specific deterrence but they remain principles of some importance, as do denunciation, just punishment, and community protection. I balance these matters against the mitigating factors that apply and the need to promote your rehabilitation.
63I have had regard to the principle of parsimony which provides that I must be satisfied that no other sentence is appropriate before I impose imprisonment. I have applied the principles in the case of Boulton v The Queen[2] with respect to community correction orders and asked myself the question whether this offence requires imprisonment with all its disadvantages when there is the option of a community correction order.
[2][2014] VSCA 342 at paragraph [121].
64In the end I have decided that it does not require imprisonment and I intend to impose a community correction order. It will be a substantial order. I earlier said that I perhaps might reduce the time period, but I will leave it at the three years I initially indicated.
Sentence
65Ms Majok, you are convicted and placed on a community correction order for a period of three years. During that period, you are required to undertake 250 hours of community work, participate in programs for rehabilitation in respect of alcohol use, mental health, and offending behaviour programs. You will be under the supervision of Corrections during that time.
66In terms of treatment conditions, 80 hours of any treatment hours can be offset against the community work component.
67There are core conditions:
· You must not commit another offence during the time the order is in force. If you do you will be in breach of the order. You will be brought back before me and one of the options is I will re-sentence you, and I may end up with no choice but to impose a period of imprisonment. Do you understand? If you do not do this order there is every chance that a period of imprisonment would follow for this offending.
· You have to comply with any obligations or requirements under the sentencing regulations. You must report to Corrections and receive their visits.
· You must go to Corrections within two working days at the Sunshine Corrections Office at 499 Ballarat Road in Sunshine.
· If you change your address or your job you have to let Corrections know, and you cannot leave Victoria without getting permission to do so, and you have to obey all lawful instructions from Corrections.
68HIS HONOUR: If you do not do any of those things you are in breach of the order. Do you consent to a community correction order?
69OFFENDER: Yes.
70HIS HONOUR: Pursuant to s 6AAA of the Sentencing Act 1991, I indicate that but for your plea of guilty I would have imposed a sentence of 30 months with a minimum of 15 months.
71Are there any ancillary orders?
72MR McKENRY: No, Your Honour.
73HIS HONOUR: We'll print that out. Mr Blake, if you could take it back and get it signed.
74MR BLAKE: Yes, Your Honour.
75HIS HONOUR: Ms Majok, you understand you have got to comply with all those conditions. You have to do so for the duration of the correction order. Thanks, Mr McKenry. Thanks, Mr Blake. I will adjourn until 9.30am Monday.
76MR McKENRY: As Your Honour pleases.
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