Director of Public Prosecutions v Malwal Aweng
[2017] VCC 1709
•24 November 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-17-01515
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MALWAL AWENG |
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JUDGE: | Lewitan | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18 October 2017 | |
DATE OF SENTENCE: | 24 November 2017 | |
CASE MAY BE CITED AS: | DPP v Malwal Aweng | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1709 | |
REASONS FOR SENTENCE
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Subject: Intentionally cause serious injury; young offender.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr M Sharpley | John Cain Solicitor for Public Prosecutions |
| For the Accused | Mr B Lindner | Ann Valos Criminal Law |
HER HONOUR:
1 You, Malwal Aweng, have pleaded guilty before me to one charge of causing serious injury intentionally. The maximum penalty for this offence is 20 years' imprisonment.
2 At 8.15 pm on the evening of 8 March 2017 you and the complainant, Brian Martinez, were socialising with a group of people on the forecourt outside the State Library in Swanston Street, Melbourne.
3 You approached Martinez while he was sitting on a seat at this location. You punched Martinez, sending him to the ground. You said that you were acting in response to a perceived insult to a female member of the group.
4 Martinez was then punched and kicked by co-offenders Biliamo Tuifeai and Piri Kevin Kaipo.
5 Martinez went to the ground a second time, whereupon you went up to him and stomped on his head.
6 It is the prosecution case that by your actions you intentionally encouraged the attack on Martinez by Tuifeai and Kaipo and were thereby involved in all aspects of the attack.
7 You left the scene and you and the co-accused were arrested and interviewed that evening. You offered no comment when interviewed by the police. You have been in custody at the Melbourne Remand Centre since that date.
8 Martinez was taken to the Royal Melbourne Hospital for injuries which included a fractured nose, a fractured cheek, bruising on the right shin and upper back, swelling/bruising to the back of the right eye and left eye angle recession which poses an increased risk of glaucoma and subsequent risk of a loss of areas of vision.
9 The facts in this case are very serious, shocking and disturbing. You stomped on the head of the complainant when he was unconscious and lying on the ground. An aggravating aspect was that you were serving a Community Correction Order which commenced less than four weeks before the commission of this offence.
10 As has been pointed out by your counsel, there are however some mitigating factors. You have pleaded guilty. You are entitled to have that fact taken into account in your favour and I do so. The community has, by your plea, been spared the time and cost of a trial. Witnesses have been spared the ordeal of giving evidence upon your trial.
11 You offered to plead guilty to the charge of intentionally cause injury on 30 May 2017. At that time there was some uncertainty as to the nature of the injuries suffered by the victim. As time passed, more details were provided. On 10 October 2017 a radiological report disclosed for the first time that the victim had suffered an undisplaced fracture to his cheek. Your counsel submitted that although the plea of guilty was entered on the first day after the trial commenced, you had indicated from at least 30 May 2017 that there was an offer to plead to the substantive charge and that the only issue was whether the injuries that were caused fell within the definition of serious injury.
12 In a report dated 10 October 2017 by Carla Lechner,[1] you expressed regret at the injuries that you caused.
[1] Exhibit 1, page 8.
13 I accept that your plea and the comments you made to Carla Lechner indicate remorse for your actions.
14 I have been told something of your personal history and your circumstances. You were born in South Sudan on 6 December 1996 and are 20 years old.
15 You are the third of seven children. You have two older sisters, two younger sisters and two younger brothers. You first attended school in a refugee camp in Egypt. This was difficult as you did not know Arabic.
16 You came to Australia in 2004 when you were seven years old. You initially lived in Sunshine West, then Braybrook and then St Albans. You attended Stephensville Primary School to Grade 6. Your family was the only African family at that school.
17 You attended the Catholic Regional College for Grade 7 in 2009 and part of Grade 8 but were expelled from school for fighting. You were transferred to Brimbank College for year 10 (2012) but were expelled from there when you were 15 years old. You were subjected to bullying throughout your schooling in Australia.
18 Your parents separated in 2009 or 2010. Your father moved to Castlemaine and returned to the family home on weekends. Your father worked as a packer at Don Smallgoods in Castlemaine.
19 You starting using cannabis when you were 14 years old. You also used ecstasy, cocaine and alcohol, with the use of alcohol to excess. On the day of the offence you were given the drug Xanax to consume with alcohol.
20 In 2015 you commenced a bricklayer’s apprenticeship at the Sunshine TAFE. The duration of the study aspect of the apprenticeship was two months. You then worked as a brickie's labourer for six months. Your right shoulder kept dislocating as a result of an injury you received when you were stabbed when you were 16 years old. You ceased that job due to the shoulder injury.
21 You met Brian Martinez while you attended TAFE in 2015. He was undertaking an apprenticeship course. You describe Martinez as among your circle of friends for a couple of years before this incident. You would socialise together from time to time.
22 In June 2016 you were charged for committing offences and bailed to live with your father in Castlemaine which you did from July 2016 to March 2017.
23 You have admitted before me to prior convictions. There are 20 such convictions, involving two court appearances between 15/16 January 2013 and 14 February 2017.
24 You first appeared at the Sunshine Children’s Court on 30 April 2012 and were charged with offences which included intentionally cause injury and armed robbery. You were released on a Youth Supervision Order without conviction for a period of 12 months to 29 April 2013. In January 2013 you returned to that Court and were sentenced to be detained in a Youth Justice Centre for 10 months for crimes which included burglary, intentionally cause injury and threat to inflict serious injury.
25 On release you lived with your mother and as a result of further offences you were placed on probation orders in 2013 and 2014.
26 On 14 February 2017 you were convicted of charges which included aggravated burglary and intentionally cause injury. You were sentenced to 21 days’ imprisonment which was the time you had served in custody. On that day the Sunshine Magistrates Court imposed a Community Correction Order for a period of 18 months.
27 The nature of some of your prior convictions, and in particular the convictions for intentionally cause injury, are such that they are highly relevant to my task of sentencing you today.
28 Your mother, father and one of your younger sisters were present in court to support you. You are the oldest male child in the family. Your parents and siblings have visited you whilst you have been in custody and continue to support you.
29 In her report Carla Lechner stated that you “present as a 'high' risk of violent behaviour. This risk would be reduced through abstinence from substance abuse and psychological assistance to manage his [your] impulsivity, anger management and mood management issues.”[2]
[2] Exhibit 1, page 7.
30 At this stage your prospects for rehabilitation are guarded.
31 I sentence you as the principal offender. You threw the first punch and then returned and stomped on the victim’s head when he was unconscious on the ground. Your co-offenders Biliamo Tuifeai and Piri Kevin Kaipo were dealt with in the Children's Court. Mr Tuifeai admitted to punching the victim. Kaipo admitted to one kick and one hook punch to the head. On 18 July 2017 Biliamo Tuifeai pleaded guilty to intentionally cause serious injury. He had served 111 days by way of presentence detention and was placed on a 12 month Youth Supervision Order without conviction. He was 16 years old.
32 On 30 June 2017 Piri Kevin Kaipo also pleaded guilty to intentionally cause serious injury. He served 13 days by way of presentence detention and was placed on a good behaviour bond without conviction.
33 A victim impact statement has been filed by Brian Martinez. I accept that Martinez has suffered stress and anxiety and deterioration of his mental health as a result of your actions and the injuries he received. He said that he does not feel safe socially or going to his classes. The victim’s mother, Claudia Fenwick, also described the painful and stressful effect that your conduct has had on her son and herself.
34 However, as well as those 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 (Sentencing Act) to manifest the community's denunciation of your conduct and generally to impose a just punishment.
35 On the other hand I do not apply those considerations with as much force as I might if you were older, for you are a young offender and must and will be sentenced as such. Your rehabilitation is a primary concern in fixing an appropriate sentence.
36 In her report Carla Lechner stated that you present with symptoms of major depressive disorder.[3] Your counsel conceded that the principles in Verdins play a very minor part in the circumstances of this case. Accordingly the weight to be given to both general and specific deterrence is to be sensibly moderated.
[3] Exhibit 1, p 6.
Gravity of the offence
37 Your counsel referred to Dieu Chol v The Queen[4] and the factors identified by Maxwell P in Nash v The Queen[5] that were ‘routinely taken into account by sentencing judges in assessing the gravity of particular instances of intentionally causing serious injury’. Those factors were as follows:
[4] [2016] VSCA 252, [5].
[5] (2013) 40 VR 134, [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 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.
38 Your counsel submitted that the offence is at the lower end of the scale of intentionally cause injury given the lack of planning, the relative brevity of the incident and the fortunate lack of permanent injury at this time. It was not a persistent or prolonged attack. The CCTV footage discloses that you walked away after you stomped on Martinez’ head. You then returned to the group and picked up a shoulder bag and walked away from the scene. The CCTV footage indicates that the duration of the offending was approximately 31 or 32 seconds. There were no weapons involved or resorted to by any of the three offenders. It was an unplanned and spontaneous attack. It seems to have resulted from the offence being taken to comments by the victim made in the context of excessive drug and alcohol consumption by you, the victim and others involved. The victim had a blood alcohol reading of 0.1%.
39 Your counsel submitted that it appears that from the materials that the injuries are at the lower end of the range. Dr Toncich gave evidence that the injuries were not permanent and would be expected to heal. The injury to the victim’s nose was likely to heal; the injury to the victim’s cheek was likely to heal. The injury to the victim’s eye would, however, require permanent monitoring. Dr Ang examined Martinez on 10 July 2017. Dr Ang said that the victim’s visual acuity was normal in both eyes and that there was normal eye pressure. In his report Dr Ang stated:
The only ocular trauma that I could detect clinically was angle recession in the left eye nasally. This will increase his risk of developing high eye pressure (and potential vision loss from glaucoma) in the left eye in the future. As a result, Mr Martinez will require monitoring of his eye pressure on a yearly basis. At this stage, Mr Martinez still has normal vision and eye pressure, and does not suffer from glaucoma.[6]
[6] Exhibit 2.
40 The prosecutor conceded that the victim’s injury falls within the lower part of the range of serious injury, albeit fortuitously.
41 I accept your counsel’s submission that the offence falls within the lower range of intentionally cause serious injury.
42 This is the first time that you have spent an extended period of time in adult custody. You have found that experience difficult. You have been racially abused whilst in custody. Since the riot at the Melbourne Remand Centre, there are more onerous lockdown conditions that apply to all prisoners at the Melbourne Remand Centre. I take these matters into account when sentencing you.
43 Your counsel conceded that a disposition involving confinement is appropriate in the light of your prior convictions. Your counsel referred to R v Mills[7] and the significance of rehabilitation in sentencing young offenders. Your counsel submitted that, given your age, a period of detention in a Youth Justice Centre would be appropriate. Your counsel submitted that the purposes of sentencing including general and specific deterrence can be reflected in detention in a Youth Justice Detention Centre.
[7] [1998] 4 VR 235.
44 The prosecutor was in a position to say that his instructions indicated that a Youth Justice Centre Order would not be within the range of appropriate sentences, given the seriousness of the offending and also your prior criminal history. The prosecutor submitted that the only appropriate sentence is a term of imprisonment in an adult prison.
45 The prosecutor referred to the following passage in Lawrence which was referred to in paragraph 37 of the judgment of the Court of Appeal in Mansfield v R[8].
Further, as the cases make clear, with an offence as serious as intentionally causing serious injury and particularly with an instance of it as grave as this one, the offender’s youthfulness and rehabilitation, achieved and prospective, whilst not irrelevant in the instinctive synthesis which the sentencing judge must make, were of much less significance than they would have been with a less serious offence. As has been said, youth and rehabilitation must be subjugated to other considerations. They must, as the President said in Wright, take a ‘back seat’ to specific and general deterrence where crimes of wanton and unprovoked viciousness (of which the present is an example) are involved, particularly where (again as here) the perpetrator has been given previous chances to control his aggressive habits. This is because the offending is of such a nature and so prevalent that general deterrence, specific deterrence and denunciation of the conduct must be emphasised. There is a particular reason why, with this offence, youthfulness of an offender cannot be of much significance. This is that, as this very case exemplifies, the persons who committed the offence and wreak appalling injuries, very often by kicking and stomping upon their prone or supine victims, are predominantly youths and young men acting under the influence of alcohol or drugs or both. Here, the respondent was, in any event, only on the borderline of youthfulness and moreover was not by any means a first offender. For these reasons I agree with Ms Pullen’s submission that her Honour did err in her statement that the respondent’s rehabilitation was required to be foremost in the mind of a sentencing court.[9] (emphasis mine)
[8] [2017] VSCA 220.
[9]Lawrence (2004) 10 VR 125, 132 [22] (citations omitted).
46 In order to establish a young offender’s suitability to a Youth Justice Centre Order the Court must be satisfied that:
(a) There are reasonable prospects of rehabilitation; or
(b) that the young offender is particularly impressionable, immature or likely to be subjected to undesirable influences in an adult jail.[10]
[10]Sentencing Act, s32.
47 As you are aware, I have sought and obtained a pre-sentence report. The purpose of the report is to advise the Court regarding your suitability for a Youth Justice Centre Order. The report prepared by Stephen Riordan dated 8 November 2017 indicates that the Department of Justice and Regulation (Youth Justice) has deemed you to be an unsuitable candidate for a Youth Justice Centre Order. Mr Riordan had reservations about whether you had reasonable prospects of rehabilitation within the youth justice system. He stated:
…He has an extensive criminal history dating back to 2012 and has had multiple orders with Youth Justice since that date. He has been subject to a Youth Supervision Order in 2012 (Breached), a Youth Justice Centre Order in 2013, a Parole Order and 2 Probations. A common theme throughout his criminal history is his continual use of violence when substance effected. A Pre-Sentence Report dated 20/11/14 written by Ms Diane Karevski dated 02/11/14 indicated psychologist Jeffrey Cummins stated that Malwal ‘probably suffers from Post-Traumatic Stress Disorder’. This report stated “Mr Cummins also indicated that Malwal suffers from Oppositional Defiance Disorder. The writer directed Malwal to attend psychological counselling with Adolescent Forensic Health Service (AFHS) during the operational period of his Youth Supervision Order in 2012. However, Malwal attended one appointment on 21 August 2012 and failed to attend all subsequent appointments.”
Mr Aweng received a Community Corrections Order on 14/02/17 at the Bendigo Magistrates’ Court, again for violence related offending. That order specifically states that he spent 21 days in adult custody and that was reckoned as being a period of imprisonment, time served. The order was for 18 months with numerous rehabilitative conditions and restrictions for him to undergo treatment and rehabilitation. He was not to enter licenced premises and had an alcohol exclusion and to reside at his father’s house in Castlemaine. He committed the current offence 3 weeks after receiving this order.
This is Mr Aweng’s second stay in adult custody and this time he has spent a significant amount of time in a mainstream unit.
48 Mr Riordan further stated that he did not believe that you fit the criteria stipulated by s.32 of the Sentencing Act.
Mr Aweng has a significant history of substance use and violence and numerous interventions attempted by Youth Justice. He continues to offend in a similar manner with no real attempts to engage with interventions ordered by the court. He has clearly struggled to develop any level of internal motivation and has failed to engage with court ordered programs. The current offences were committed when he was subject to a Community Corrections Order and after a 21 day stay in jail. During the interview he did not appear to be immature or particularly impressionable, rather his presentation was age appropriate. Mr Aweng also appears to have navigated the prison system with relative ease and has again coped within that system. It would appear that that particular environment has had a positive effect on him and he says that he needs to address his substance use and violent behaviours. This realisation did not occur until he was placed in an adult prison.
49 After reading the report dated 8 November 2017 prepared by Mr Riordan, your counsel repeated his earlier submissions and submitted that given your age and the fact that you have now been in adult custody for eight and a half months, it is appropriate to fix a longer period of parole so that you can be supervised in the community upon your release. The prosecutor referred to your extensive history of similar offending. I have taken your counsel’s submissions into account.
50 Would you please stand. This is without doubt a serious offence. In all the circumstances, I have no alternative to the imposition of a custodial sentence. I propose to record a conviction and sentence you to be imprisoned for a period of four years. I direct that you serve a minimum sentence of 28 months before becoming eligible for parole.
51 I declare that the period of 261 days be reckoned as time already served under the sentence I have imposed. I order that there be noted in the records of the Court the fact that such a declaration was made together with its details.
52 Section 6AAA of the Sentencing Act requires me to state the sentence and non-parole period that I would have imposed but for the plea of guilty. Your plea has saved time, expense, and the need for witnesses to give evidence, and is reflective of remorse. But for your plea of guilty, I would have sentenced you to a term of imprisonment of six years. I would have directed that you serve a period of four years before being eligible for parole.
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