Director of Public Prosecutions v Makur
[2018] VCC 390
•9 April 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised (Not) Restricted Suitable for Publication |
Case No. CR-17-00540
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JOHN MAKUR |
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JUDGE: | LEWITAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 February 2018 | |
DATE OF SENTENCE: | 9 April 2018 | |
CASE MAY BE CITED AS: | DPP v Makur | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 390 | |
REASONS FOR SENTENCE
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Subject: Intentionally cause serious injury
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms P. Thorp | John Cain Solicitor for Public Prosecutions |
| For the Accused (Plea) (Sentence) | Mr S Kenny Mr A. Cini | Papa Hughes Lawyers |
HER HONOUR:
1 You, John Makur, have been convicted after trial of one charge of intentionally cause serious injury. The maximum penalty for this offence is 20 years' imprisonment.
2 On the evening of Tuesday 16 August 2016 the complainant, Valentino Arop (Arop), went to the apartment of his friend, Akuien Deng (Deng), who was living at 8/17 Wingate Avenue Ascot Vale. Deng had called Arop to come over and help him. Arop regularly went to Deng’s place as Deng is disabled and lives alone. He has one leg.
3 When Arop arrived, there were a number of people at the apartment drinking alcohol. The house was a mess and there was vomit everywhere. Arop was sober (he does not drink alcohol).
4 You were one of the people in the apartment. Arop knew you from when you were children in Kenya. He had seen you in Ascot Vale, Australia since that time.
5 Deng was on the couch. You were asleep in Deng’s room. Arop started to clean the vomit from the floor. You told Deng he should go to bed in his own room. Deng said that he needed some help because there were people inside his house and no one listened to Deng when he tried to “kick people out”. Deng asked Arop to get the people to leave. Arop began asking people, including you, to leave the apartment.
6 You left the apartment and then came back about 20 minutes later and knocked on the door. Arop answered the knock and spoke to you at the door. You asked Arop to go outside. When he refused you produced a large kitchen knife, in your right hand, from behind your back. You stabbed Arop to his scrotum and upper inner thighs. Arop was forced back. He went and sat on a chair in the lounge room. You were screaming that you were going to kill Arop who was bleeding heavily. You attempted to stab Arop again while he was sitting on the chair. Arop got up and grabbed the knife blade to try and disarm you. He received cuts to his hands and forearms in the attempt. Arop could hear people trying to hold you back. Arop started to feel weak and dizzy so he ran into another room in the apartment and collapsed on the floor. He heard Chol Ruk call an ambulance.
7 You fled the apartment. Police and ambulance officers arrived a short time later. Arop was taken to the Intensive Care Unit at the Royal Melbourne Hospital where he underwent surgery.
8 Arop sustained deep lacerations to his inner thighs and groin area. The right superficial femoral artery had a hole in it and had to be patched by using a graft from another vein. The medical evidence was that the injury required urgent treatment and Arop would have bled out without such treatment. Arop received 4 pints of blood by way of blood transfusion whilst in theatre at the Royal Melbourne Hospital. Arop also received an injury to his left forearm. The wound went right through the forearm and he has scars on his arm and hands. He still suffers from pain from those injuries.
9 A dispute has arisen as to whether you stabbed Arop once or twice to his scrotum and upper inner thighs. Your counsel submitted that the Court cannot be satisfied beyond reasonable doubt that you were stabbed twice. Your counsel submitted that the injury to Arop’s left thigh was a superficial laceration consistent with a knife travelling across Arop’s left thigh, across the bottom of the scrotum and terminating in the right thigh.[1] Your counsel referred to the clinical progress notes at page 151 of the depositions. Your counsel referred to the dashed line which was a drawing of stiches across the groin area terminating on Arop’s right thigh. Your counsel submitted that these notes show that the cuts to Arop’s thighs are essentially in alignment. Your counsel referred to the evidence of Dr Wong that he should not discount the possibility that all of the injuries were caused by a single cut and that they were all in alignment.
[1] Transcript p 20.
10 The evidence of the complainant at the trial was that he was stabbed twice at the front door. Although I am not satisfied beyond reasonable doubt that you stabbed Arop twice at the door of the apartment, this is a situation where there were multiple stab wounds. Arop’s injury included multiple stab wounds and a life threatening stab wound which have caused scarring and long term pain. If Arop had not been attended to promptly he would have died because the injury to his femoral artery meant that it would have bled out.
11 Your counsel did not disagree that whilst Arop was sitting on the couch, he was trying to stop you from injuring him further. He grabbed the knife and there were cuts to his hands. Your counsel conceded that Arop had the stab injuries to his arm and cuts to his hands. Your counsel also admitted that you told Arop that, “I am going to kill you.”
12 In Nash v The Queen[2] President Maxwell summarised the following matters which are to be taken into account in assessing the gravity of the offence of intentionally cause serious injury:
[2] (2013) 40 VR 134.
· 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 the 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.
13 Your counsel conceded that the injuries in this case were towards the higher end of the range of seriousness principally because the risk to Arop’s life, caused by the injury to the femoral artery and the ongoing consequences of his injuries. The offences were committed with a weapon. Your counsel conceded that this elevates the offence from being in the middle of the range to being towards the upper end of the range.
14 Your counsel submitted that there was an absence of clear motive and a limited degree of planning or premeditation. The attack lasted a few moments and was not committed in company. Your counsel submitted that the objective features of this conduct placed the offending towards the upper part of the middle range of seriousness for offences of this type.
15 The prosecutor referred to Nash and submitted that I am entitled to take into account the following factors in assessing your intent at the time of the offence, which include the utterance of the words, “I want to kill him” and also that the incident was twofold. The offence included the initial attack at the front door and the evidence was that you then moved to the couch where the victim was seated and bleeding profusely and you attempted to stab him again. That shows that the intent was to inflict further injury than the victim had originally sustained at the front door. The victim was vulnerable in that he was unarmed and was surprised by the attack. Also for a part of the assault he was badly injured and seated in a chair. A weapon, the knife, was used. Although it did not last for very long, your crime did have two parts to it and you did not leave after the initial stabbing. You acted alone. The victim impact statement indicates the profound effect of your crime on the victim in terms of pain and enjoyment of life.
16 In terms of planning, the crime was not spontaneous. You had the knife with you when you knocked on the door. It was unprovoked. The complainant did not do anything to specifically upset you other than asking you to leave.
17 I accept the victim’s evidence that your crime has had a big impact on his life.[3] The stabbing has left him with constant pain. He works as an apprentice bricklayer but finds working very difficult due to the pain in his body from the stabbing. He feels constant pain when he lays and butters the bricks. He has been advised that he may have trouble walking properly in the long term. He was stabbed in both arms, both legs, his groin, testicles, right and left thumbs, both wrists and his face. He used to enjoy going to the gym which he now no longer enjoys because of the pain. He used to play basketball but cannot jump because it hurts his whole body. The crime has affected his relationships. He has lost his confidence and feels he cannot trust people.
[3] Victim Impact Statement dated 21 December 2017, Exhibit A.
18 I regard your crime as a serious example of this type of offending. Applying the factors referred to in Nash to this offence, the gravity of the offence was in the moderate to high range. The aggravating aspects include the use of a large kitchen knife and the element of pre-planning. At the time of committing this offence you were subject to a Community Correction Order which had been imposed by the Melbourne Magistrates Court on 1 March 2016.
19 As has been pointed out by your counsel, there are however some mitigating factors. I have been told something of your personal history and your circumstances. You were born in South Sudan on 15 March 1989 and are now 29 years old. At the time of the offence you were 28 years old.
20 You have one older brother and two younger brothers. Your family came from the city of Wau which is in the north west part of what is now South Sudan. Your family was forced to flee South Sudan due to the civil war, and between 1994 and 2005, you lived in a refugee camp in Kenya.
21 From 1994 to 1997 your family lived in Nairobi. Your parents separated during that time and your mother and brothers relocated to the Kakuma refugee camp as they were unable to afford housing, healthcare and education in Nairobi. You attended primary school at the refugee camp. During this period your father was re-settled as a refugee in Sydney.
22 Whilst living in Kakuma, you and your mother and brothers were also confirmed to be refugees by the office of the United Nations High Commissioner for Refugees (UNHCR) and you emigrated to Melbourne in 2005 and have lived in the Sunshine area since then. You completed years 10, 11 and 12 at Braybrook College. You were a keen sportsman and played soccer.
23 After completing year 12, you completed one year of an Advanced Diploma of International Business at the TAFE college in Footscray. You took some time off in order to travel and travelled across the capital cities of Australia.
24 In 2009 you were the victim of a serious assault. You were stabbed in the abdomen and the thigh whilst you were at a party. In the course of that assault you received a head injury which caused you to have surgery on your brain. You were in hospital for a period of two weeks. Since that time you have not returned to your studies and have not resumed playing soccer.
25 You had been in a long term relationship during your teens and early adulthood. The relationship struggled after your injuries and ended in 2012. You subsequently had a relatively brief relationship with another woman which ended in 2015. You have a four year old son from that relationship but you are not permitted to see your son.
26 Prior to 2009 you drank alcohol and smoked cannabis occasionally. Your drinking increased dramatically after the assault. You had been drinking heavily up until the commission of this offence.
27 You lived with your mother after ceasing your studies. You had some unskilled jobs. You worked in warehousing at a company called Polar Fresh between 2012 and 2014. In 2015 you stopped working and separated from your partner over the course of 2015. While you continued to live with your mother formally, you spent increasing periods of time away from home, couch surfing. You started to spend a lot of time at other people’s flats, including the Wingate flats. It was during that time that you came to know and to regularly associate with Deng.
28 On the day of the offence you had been at the flats drinking for a period of time prior to the commission of the offence. You were heavily intoxicated.
29 You maintain a close relationship with your parents and brothers. Your mother, your maternal uncle and your paternal uncle were present in court to support you. Your father was present during the trial. He lives in Sydney and was unable to attend court for the plea hearing.
30 You have admitted before me to prior convictions. There are 10 such convictions, involving 3 court appearances between June 2011 and March 2016. The nature of some of those prior convictions and in particular the convictions for unlawful assault, carry dangerous article in public place and assault police are such that they are relevant to my task of sentencing you today.
31 A report by Emma Burrowes dated 22 January 2018 (Burrowes Report)[4] has been tendered. Ms Burrowes has determined that your general intellectual functioning is in the extremely low range, possibly as a result of a traumatic brain injury.
[4] Exhibit 1.
32 Your counsel referred to the first principle in R v Verdins[5] and submitted that your low intellectual functioning should be taken into account in assessing your moral culpability. Your counsel also submitted that the third and fourth principles of Verdins are also relevant to a much lesser extent. Your counsel referred to the decision of the Court of Appeal in DPP v O’Neill.[6] In that case the Court of Appeal stated:
"In order for the first, second, third and fourth principles enunciated in Verdins to have application to the sentencing task, there must be a connection between the impairment to mental functioning and the appellant’s moral culpability or the need for general and specific deterrence. If the mental impairment existed at the time of the offending, it must have some ‘realistic connection’ with the offending; or have ‘caused or contributed’ to the offending; or be ‘causally linked’ to the offending".
[5] 16 (2007)VR 269.
[6] (2015) 47 VR 395, [74].
33 Your counsel referred to Burrowes’ opinion that you presented with extremely low range general intellectual functioning and that your cognitive difficulties are likely contributing factors to your offending behaviour.
34 The prosecutor submitted that the opinion expressed by Burrowes that your cognitive difficulties are likely contributing factors to your offending behaviour is not a sufficient basis to reduce your moral culpability as the expressed opinion does not state how these cognitive difficulties contributed to the commission of the offence and to what extent. The prosecutor submitted that the surrounding circumstances of the offending suggest that you committed the offence as you had been asked to leave the premises by the victim. Further, there is evidence that you were heavily intoxicated at the time and there is no evidence as to what part that played in your decision making at the time.
35 Although the evidence is far from satisfactory, I accept the defence submission that the first principle of Verdins has some application because of your extremely low range of general intellectual functioning. I accept Burrowes’ evidence that you demonstrated mild impairments in speed of information processing, visual memory and executive functioning on assessment. In her opinion “these cognitive difficulties demonstrated by Mr Makur on assessment transpire in daily life as impairments in his ability to reason, problem solve, think rationally, and make decisions. These difficulties are all likely contributing factors to his offending behaviour.”[7]
[7] Exhibit 1, p 6.
36 I accept that your low range intellectual functioning played a small role in your offending and operates so as to reduce your moral culpability and to moderate, to a very limited extent, the need for general and specific deterrence.
The risk of deportation
37 You are not a citizen of Australia. You are a permanent resident.
38 In Guden v R[8] the Court of Appeal made the following observations about the possibility of deportation:
"The fact that an offender will serve his/her term of imprisonment in expectation of being deported following release may well mean that the burden of imprisonment will be greater for that person than for someone who faces no such risk. Moreover, we respectfully agree with the view expressed by the New South Wales Court of Criminal Appeal in Kwon[9] that, in an appropriate case, it will be proper to take into account the fact that a sentence of imprisonment will result in the offender losing the opportunity of settling permanently in Australia. Taking a practical approach, as the court there did, this may well be viewed as a serious 'punishing consequence' of the offending".
[8] (2010) 28 VR 288, [27].
[9] [2004] NSWCCA 456
39 The Court of Appeal made it clear that the offender bears the burden of establishing that the prospect of deportation is more than a speculative possibility before it can be taken into account because:
"The sentencing court cannot be asked to speculate. If defence counsel on a plea of mitigation can say no more than a term of imprisonment of more than 12 months will, upon its expiry, enliven the power of the Minister for Immigration either to revoke an existing visa or to decline to renew one, then deportation may properly be viewed as a completely speculative possibility".[10]
[10] (2010) 28 VR 288, [28].
40 The Migration Act 1958 ("the Act") has been amended since Guden was decided. Relevantly, s.501(3A) has been inserted into the Act. That section provides;
"The Minister must cancel a visa that has been granted to a person if:
(a) The minister is satisfied that the person does not pass the character test because of the operation of:
(i) paragraph 6(a)(substantial criminal record), on the basis of paragraph 7(1)(b) or (c); …and ….
(b) the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory." (emphasis added)
41 A person does not pass the character test if that person has a "substantial criminal record". Section 501(7)(c) of the Migration Act 1958 provides that for the purposes of the character test, a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.
42 In DPP v Zhuang[11] the Court of Appeal stated that the amendment to the Migration Act 1958 (Cth) by the insertion of s501(3A)[12] requires the relevant minister to cancel a visa if the visa holder has been sentenced to a term of imprisonment of 12 months or more.
"That prospect presently being capable of quantification, it is now a mitigatory factor which, as the judge had already found, would increase the burden of her sentence".
[11] [2015] VSCA 96, [54].
[12] With effect from 11 December 2014.
43 Your counsel submitted that I should take into account both of the principles stated in Guden. The decision to cancel the visa is mandatory. What the minister might do after cancelling the visa, is a matter for the executive and is something that the court cannot take into account.
44 The prosecutor submitted that the evidence of the effect of deportation on you is required. She referred to the following passage in Konamala v The Queen[13]:
"Self-evidently, whether the prospect of deportation in a given case will make the burden of imprisonment more onerous will depend on the prisoner’s personal circumstances. It is an unhappy fact that many offenders come to this country for the sole purpose of criminal activity. They have no interest in making Australia their home. For offenders such as those, deportation to their country of origin may impose no burden upon them at all. Indeed, deportation might be something of a blessing, particularly where language or culture have caused them to be isolated. On the other hand, the prospect of a deportation might be a severe additional punishment for an offender who had aspired to make Australia his or her home, particularly if the offender has a spouse, children or other family resident in the country or has other ties to the Australian community".
[13] [2016] VSCA 48, [34].
45 I accept your counsel’s submission that during the term of imprisonment, you have faced and will face, the possibility that you might be deported upon release. You did not come to Australia for the sole purpose of criminal activity. On the contrary, you have been living in Australia since 2005 and completed your secondary schooling in Australia. Your parents reside in Australia and, as previously stated you maintain a close relationship with your parents and brothers. I accept that the burden of imprisonment is greater for you than for someone who faces no risk of deportation.
46 Your counsel referred to Burrowes’ Report and the recommendation that it would be beneficial to repeat a cognitive assessment to deal with rehabilitation. You have the support of your family. However, in my opinion, your prospects of rehabilitation are guarded.You have shown no remorse. You have a prior criminal history which includes prior convictions for unlawful assault, assault police and carry a dangerous article (knife) in a public place.
47 As well as the matters personal to you to which I have referred, including your prospects of rehabilitation, I must also take into account such matters as deterrence, especially general deterrence, which is of considerable importance in a case such as this. I must also consider the question of the protection of members of the community from you and bear in mind the likelihood of your re-offending, I am called upon by the Sentencing Act 1991 (the Sentencing Act) to manifest the community's denunciation of your conduct and generally to impose a just punishment.
48 Your counsel acknowledged that because of the inherently serious nature of the offence of intentionally causing serious injury, principles of general and specific deterrence, denunciation and just punishment must loom large in the instinctive synthesis.
49 Your counsel acknowledged that the only available penalty is a term of imprisonment because of the seriousness of the offence. Your counsel referred to Gumwel v The Queen[14] and submitted that the facts are similar to this case. Gumwel was sentenced to a period of imprisonment of five years with a three year non-parole period. In my view the facts and circumstances in that case are different from the facts in this case. Gumwel was 24 years old at the time he committed this offence which involved him glassing the victim. The victim was intoxicated and threw the first punch and struck Gumwel twice to the face. Gumwel was sober. The injuries sustained by the victim were not as serious as those as sustained by Arop. The victim in that case refused to make a victim impact statement.
[14] [2016] VSCA 14.
50 This is without doubt a serious offence. In all the circumstances I have no alternative to the imposition of a custodial sentence. Would you please stand. I propose to record a conviction and sentence you to be imprisoned for a period of 9 years. I direct that you serve a minimum term of 6 years before becoming eligible for parole.
51 Lastly I order that the property referred to in the schedule to the disposal order, which I have signed this day, be forfeited to the State and direct that it be placed in the custody of the Chief Commissioner of Police and held by him until 28 days from this date and then destroyed.
52 As prescribed by s18(4) of the Sentencing Act I declare that the period of time you have already spent in custody is 601 days. I direct that such be noted in the records of the court.
53 Does that take care of all matters? Yes, thank you.
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