Director of Public Prosecutions v Mathiei
[2023] VSC 123
•31 March 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2020 0319
S ECR 2020 0367
S ECR 2020 0320
S ECR 2020 0368
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| THON DUOP MATHIEI |
| MARUAL MANGAR |
| CHOL AKOT |
| JOHN ALEER MAJOK |
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JUDGE: | BEALE J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 12 and 13 December 2022 |
DATE OF SENTENCE: | 31 March 2023 |
CASE MAY BE CITED AS: | DPP v Mathiei & Ors |
MEDIUM NEUTRAL CITATION: | [2023] VSC 123 |
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CRIMINAL LAW – Sentence – Group of youthful offenders alighted from their cars and attacked victims who got out of their car – Principal offender Mathiei pleaded guilty to causing serious injury recklessly in circumstances of gross violence, and causing injury recklessly – Upper mid-range example of offence, and lower mid-range example of offence, respectively – No prior or subsequent convictions – Excellent prospects of rehabilitation – Total effective sentence of four years and six months’ imprisonment – Mandatory minimum non-parole period of four years’ imprisonment – Co-offenders Mangar, Akot and Majok convicted by jury of causing serious injury recklessly in circumstances of gross violence, causing injury intentionally and affray – Lower mid-range examples of offences – No prior or subsequent convictions – Mangar with reasonable prospects of rehabilitation – Akot and Majok with excellent prospects of rehabilitation – Unlike Mathiei, no mandatory minimum term for Mangar, Akot and Majok because their liability for main offence based on intentional assistance – Mangar, Akot and Majok total effective sentence of 359 days’ imprisonment – Inordinate delay a particularly significant mitigating factor in sentencing – Crimes Act 1958 ss 15B, 18, 195H, 323(1)(a) – Sentencing Act 1991, s 10 – R v Merrett, Piggott & Ferrari (2007) 14 VR 392; [2007] VSCA 1.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms E Ramsay | Office of Public Prosecutions |
| For Thon Duop Mathiei | Mr T Marsh with Ms M Greener | Angus Cameron Lawyers |
| For Marual Mangar | Mr A Halphen with Ms N Freijah | Slades & Parsons |
| For Chol Akot | Mr D Sala | Emma Turnbull Lawyers |
| For John Aleer Majok | Mr J Hannebery KC with Ms K Ljubicic | Dribbin & Brown Criminal Lawyers |
HIS HONOUR:
OFFENCES
Mathiei
Thon Duop Mathiei, you pleaded guilty to two charges on your plea indictment: first, causing serious injury recklessly in circumstances of gross violence[1] (charge 1), an offence which carries a maximum penalty of 15 years’ imprisonment; and, second, causing injury recklessly[2] (charge 2), an offence which carries a maximum penalty of five years’ imprisonment.
[1]Section 15B of the Crimes Act 1958.
[2]Section 18 of the Crimes Act 1958.
Mangar, Akot and Majok
Marual Mangar, Chol Akot and John Majok, you were each found guilty by a jury of three charges on your trial indictment: first, causing serious injury recklessly in circumstances of gross violence (charge 1), an offence which, as I said, carries a maximum penalty of 15 years’ imprisonment; second, causing injury intentionally (charge 2),[3] an offence which carries a maximum penalty of 10 years’ imprisonment; and third, affray (charge 4),[4] an offence which carries a maximum penalty of five years’ imprisonment.
[3]Section 18 of the Crimes Act 1958.
[4]Section 195H of the Crimes Act 1958.
CIRCUMSTANCES OF OFFENDING
Summary of Facts
I turn then to the circumstances of your offending. Mathiei, there was an agreed summary of facts in respect of your offending. Mangar, Akot and Majok, I find that the circumstances of your offending are adequately and accurately summarised in that agreed summary of facts for Mathiei, and I will adopt that summary in your cases, noting points of distinction where necessary.
Relevantly, the agreed summary reads as follows:
2.The complainants in this matter are Awer Ater and Sharliman Kung (aka Charlie Kong).
3.The offending is alleged to have occurred on 24 March 2019 at about 4:45 am, in King Street, West Melbourne.
4.Earlier that night, the complainants had been at Seven nightclub at 52 Albert Road, South Melbourne.
5.Offender Thon Duop Mathiei … and co-offender[s] Chol Akot … Marual Mangar and Dut Garang [who is to be tried separately] had also been at the nightclub but were refused entry.
6.At about 4:30 am, Ater, Kung, Deng Dau … and David Majok left the nightclub. They then travelled north through the CBD in a black 2008 Toyota Orion ...
7.The Toyota was followed by two cars – a red Subaru RX … and a red … Mitsubishi Lancer … The offenders were travelling in those two cars. Dut Garang was driving the Subaru. Akot was in the front passenger seat of the Subaru. John Majok … was in the back seat of the Subaru. Mangar was driving the [Mitsubishi]. Mathiei was a passenger in the Mitsubishi.
8.The 3 cars travelled north along King Street through the CBD and into West Melbourne. At the traffic lights at the corner of King Street and La Trobe Street the Subaru pulled up alongside the Toyota. After the cars moved off, the Subaru pulled in front of the Toyota and braked suddenly several times, forcing the Toyota to brake also.
9.Near the corner of King Street and Roden Street, the Subaru stopped suddenly in front of the Toyota forcing it to stop. The Mitsubishi then stopped directly behind the Toyota, thereby boxing the Toyota in.
10.As soon as the cars stopped, all offenders got out of the Subaru and Mitsubishi. Some of the offenders had weapons which they took from the boot of one or other of those cars.
11.Ater, Kung, Dau, and David Majok got out of the Toyota.
12.Akot hit Dau hard with a right fist to the left cheek, just under his eye [uncharged act].
13.Mathiei chased Ater and struck him forcefully on the head with a metal pole. Ater fell to the ground and hit his head hard on the road. Mathiei then struck Ater on the knee with the pole while Ater was on the ground. [Charge 1 on both the plea and trial indictments].
14.The prosecution alleges that Mathiei, by striking Ater in the manner and circumstances described above, recklessly caused serious injury to Ater in circumstances of gross violence. The circumstances of gross violence are that Mathiei:
a. Planned in advance to engage in conduct and at the time of planning was reckless that the conduct would cause a serious injury; and
b. Planned in advance to engage in conduct and at the time of planning a reasonable person would have foreseen that the conduct would be likely to result in a serious injury; and
c. Continued to cause injury to Ater after he was incapacitated.
(I note that you, Mangar, Akot and Majok were ‘criminally involved’ in Mathiei’s offence vis a vis Ater in that you intentionally assisted him by force of numbers and by keeping others in Ater’s group at bay. I also note that the circumstances of gross violence alleged against you, and which I find to have been proved beyond reasonable doubt, were ‘a’ and ‘b’ only).
15.Three of the offenders went to the rear passenger door of the Toyota. They punched Kung, who was trying to get back inside the car, several times and hit him with poles or baseball bats. [Charge 2 on the plea indictment, Charge 2 on the trial indictment]
16.The basis for liability for charge 2 [on the plea indictment] is that Mathiei had agreed with the other offenders to cause injury to Kung and was thereby complicit in that offending.
(I note Mangar, Akot and Majok, that the basis for your liability for Charge 2 on the trial indictment is that each of you perpetrated and/or intentionally assisted the perpetrator(s) to intentionally injure Kung. It is uncertain which of you actually inflicted the injuries to Kung).
17.All offenders then got back into the Mitsubishi and Subaru and drove away north along King Street.
18.A short time later, an ambulance arrived and took Ater to hospital.
19.…
20.…
21.As a result of being attacked by Mathiei, Ater suffered a collapsed skull and trauma to the brain. He underwent surgery and was in intensive care for 10 days. Ater’s injuries were life threatening and he is unlikely to fully recover. The injuries amount to serious injury in that they endangered life and are substantial and protracted.
22.As a result of being struck by several of the offenders, Kung suffered injuries to his lip, hand, and hip.
23.…
24.On 1 May 2019, Mathiei was arrested and interviewed by police.
25.During the interview, Mathiei … denied any involvement in the offending;
(I note that you, Mangar, were arrested on 6 June 2019 and made a no comment record of interview. You, Akot, were arrested on 20 June 2019 and made a no comment record of interview. You, Majok, were arrested on 20 November 2019 and made a largely no comment record of interview.)
The summary which I have just read out is consistent with CCTV footage of the incident taken from neighbouring properties and a video taken by a passing streetsweeper on his mobile phone.
As mentioned, Mathiei, yours was an agreed summary of facts. I note that your counsel submitted that I could not find that when you struck Ater the first time as he was standing, you intended to strike him to the head. The prosecution did not dispute this submission. Indeed, the prosecutor indicated that the matter was settled on that basis. I also note that your counsel conceded in written submissions that you were aware that by your actions in striking Ater you would probably strike Ater to the head.[5]
[5]Mathiei’s written submissions, [3].
Your counsel also submitted that your intention in striking Ater on the knee when he lay on the ground was to both cause injury and ‘prevent the victim from engaging him in a further fight.’[6] The prosecution took issue with this submission. The prosecution submitted Ater never sought to fight, only to flee: even when he was struck to the head he was trying to get away, not fight. Having viewed the footage of the incident, I do not accept your counsel’s submission, Mathiei, that you struck Ater a second blow to prevent him engaging you in a further fight.
[6]Mathiei’s written submissions, [6].
Victim Impact
I turn now to Ater’s victim impact statement, made by him in November 2022 with the assistance of a health worker. In that statement, Ater indicated the profound effect your offending has had on his quality of life. He said he requires ‘24/7 care’ from his family. His victim impact statement included this:
Everything in my life has changed. I am no longer able to socialise with my family and friends like I used to, I’m unable to work and my future is uncertain as I am still healing from my injuries.
I do not have any recreational hobbies anymore, I used to play soccer, basketball, and the gym but now I can’t do any of these activities. I don’t have the same purpose in life as I am unable to do any of the things that gave me happiness.
I am hopeful for my recovery in the future to allow me to get back to these hobbies and the socialising that I love. I have been told this could [take] 5–10 years, if at all and I am holding out for this.
Fortunately for Ater, the medical records suggest a good response to surgery,[7] but as counsel for Mathiei conceded, the consequences for Ater of the offending were ‘devastating’.[8]
[7]Mathiei’s written submissions, [7].
[8]Transcript of plea hearing, 12.12.22, p19.
I note that no victim impact statement was made by Kung.
Objective Seriousness of Offending
Mathiei
I turn now to an assessment of the objective seriousness of your offending, beginning with you Mathiei. Causing serious injury recklessly in circumstances of gross violence is of course a very serious offence, as reflected in the maximum penalty. In all the circumstances, I consider yours to be an upper mid-range example of the offence because of the severity of the injuries to Ater, the fact it involved the use of a weapon in a public place, and because there was some planning, albeit of limited duration and sophistication. Had you rained more blows on Ater I would have regarded your offence as an upper-range example of the offence in question.
Even though the injuries suffered by Kung were far from serious, I consider Charge 2 to be a lower mid-range example of that offence because it was committed in company and in a public place.
Mangar, Akot and Majok
As regards an assessment of the objective seriousness of your offending, Mangar, Akot and Majok, you were criminally involved in Mathiei’s offending against Ater in that you intentionally assisted Mathiei, as previously mentioned.[9] Having regard to that finding, which is consistent with the jury’s verdict and which the prosecution conceded was open to me, and the fact that you were not the one who struck Ater, I find that yours is a lower mid-range example of the offence of causing serious injury recklessly in circumstances of gross violence. Likewise, and for similar reasons, I take the same view in relation to Charge 2 (intentionally causing injury to Kung)[10] and Charge 4 (affray), namely, that they are lower mid-range examples of the offences in question. I do not regard them as low‑range examples of those offences, primarily because they were committed in company.
[9]The Prosecution conceded that it was open to me to find that you were complicit under s 323(1)(a) of the Crimes Act 1958 (intentional assistance) and did not press for a finding that you were complicit under s 323(1)(c) of the Crimes Act 1958 (agreement, arrangement or understanding). This means that the mandatory minimum term of 4 years’ imprisonment which applies to Mathiei does not apply to you (see Sentencing Act 1991, s 10(2)(a)).
[10]I cannot be satisfied beyond reasonable doubt that you Mangar, Majok and Akot caused Kung’s injuries. The fact that your fingerprints, Mangar and Majok, were found on the Toyota supports the inference that you were physically involved in the attack on Kung in the rear of the Toyota, but it is impossible to say who actually injured him.
The prosecution submitted that the fact that you, Mangar, were Mathiei’s driver aggravates your offending. I reject this submission because I do not find beyond reasonable doubt that your intentional assistance of Mathiei preceded you arriving in the Mitsubishi at the scene of the crimes.
I will now deal with you each separately, outlining the procedural history of your respective cases and your personal circumstances.
MATHIEI
Procedural History
The procedural history of your case, Mathiei, is as follows.
On 24 March 2019, your offending occurred.
On 1 May 2019, you were arrested, charged and remanded in custody. The main charge against you was attempted murder of Ater.
On 11 May 2020, you were bailed. Some of the period you spent on remand before being bailed was made more onerous by COVID-19 restrictions in the prisons.
On 23 November 2020, after a contested committal, you were committed to stand trial on all charges. You pleaded not guilty. There were a number of aborted trial dates thereafter, some due to COVID-19 and others due to the prosecution. None of the delay was your fault.
On 8 August 2022, you were arraigned in front of the jury panel with your co-accused. You pleaded not guilty to six charges on the trial indictment, namely, attempted murder, causing serious injury intentionally in circumstances of gross violence and causing serious injury recklessly in circumstances of gross violence (all of which related to Ater), intentionally causing injury and recklessly causing injury (both of which related to Kung) and affray. A jury was empanelled. Late in the day, it was indicated by counsel that your matter had settled and that you would be pleading guilty to a plea indictment to be filed the next day. I note that you had not previously offered to plead guilty to recklessly causing serious injury in circumstances of gross violence.[11] In those circumstances, I do not accept your counsel’s submission that yours was an early plea, but I nonetheless regard your plea as a significant mitigating factor.
[11]Although you had offered to plead guilty to intentionally causing serious injury (see Plea Hearing Transcript, 12 December 2022, p23).
On 9 August 2022, the plea indictment was filed over and you pleaded guilty to Charges 1 and 2. I released you on bail until a mention hearing in early September 2022 because your partner was expecting your second child, and you had not been present for the birth of your first child due to being remanded in custody.
On 8 September 2022, after the birth of your second child, I remanded you in custody until your plea hearing.
On 12 December 2022, your plea hearing took place, at the conclusion of which I remanded you to your sentence hearing.
Circumstances of Offender
Personal History
I turn now, Mathiei, to your personal circumstances and history.
You were born in what is now South Sudan on 1 January 1996, making you 23 at the time of your offending and 27 now. You are one of eight children. Your parents were farmers.
The civil war impacted the region where you grew up. Members of your extended family were killed. You witnessed atrocities.
At nine, you moved to a quieter area to live with your grandmother. You did not see your parents thereafter and do not know if they are still alive.
At 14, you moved to Kenya and lived in a refugee camp in Nairobi for 18 months.
At 15, you came to Australia, sponsored by an uncle. You resided with extended family in Perth. You spoke little English.
At 18, you left school to enter the workforce, having completed Year 10, but having struggled in Year 11. You worked in various jobs, including plumbing, warehousing and farming.
At 19, you moved with your uncle’s family to Victoria and worked in childcare.
In your early 20s, you also worked in construction as a labourer. That was your line of work up until your offending. I am told that much of your wages went to support family in Africa.
You and your partner, Veronica Deng, have two children together, one who is three and another who is only a few months old. Veronica also has a 10-year-old child from a previous relationship whom you regard as your own daughter.
You have no prior or subsequent convictions. It appears that you do not drink alcohol or use illicit substances. There is no history of mental health diagnoses or treatment. You appear to have overcome considerable adversity in your life and, for the most part, lived your life responsibly and constructively.
But about two months before your offending on 24 March 2019, a cousin with whom you were close was killed in a car accident. You began leading a more hedonistic lifestyle, going out to nightclubs and such, perhaps seeking to numb your grief over your cousin’s death.
Whilst in custody on remand, you participated in a number of educational programs, as confirmed by several certificates from The Kangan Institute which were tendered on your behalf.
You are a permanent resident of Australia but not a citizen.
Letter of Apology
You wrote a letter of apology to Ater, which was tendered at your plea hearing. It seemed to me to be heartfelt (especially as your character references, which I will refer to in a moment, corroborate your expressions of remorse). In your letter, you cited your grief over your cousin’s death and your changed lifestyle as the explanation for your offending. It is a plausible explanation. Also plausible are the reasons you gave for the view that you will not reoffend: your remorse at the harm you have caused, the realisation that the way you tried to deal with your grief over the loss of your cousin was itself harmful, and the fact that you are now a father of young children.
Character References
Character references were provided by Veronica Deng (your partner), Mabor Mabor (a friend and workmate) and Bol Mathiang (a former youth worker and young lawyer). Those references indicate that your offending was out of character, that you are ashamed of and remorseful for your offending, that you have undertaken voluntary youth/community work, and that you have financially supported your family here and also relatives in South Sudan. They also confirm that you do not drink alcohol or use illicit substances.
Prospects of Rehabilitation
I accept your counsel’s submissions that you have excellent prospects of rehabilitation. As mentioned above, you have no criminal antecedents. You are remorseful over your offending, which appears to have occurred during a period of your life where, for a few months, you ‘lost your way’. When released on bail, you abided by all bail conditions for a lengthy period. You resumed working and providing for your family, here and overseas. On being released from custody, I think it likely that you will resume an industrious and law-abiding life. Accordingly, I have given little weight to specific deterrence in the formulation of my sentence.
Summary of Mitigating Factors
Let me summarise the factors that I consider should mitigate your sentence.
First, you pleaded guilty, albeit at a late stage.
Second, I am satisfied that you are remorseful for your offending.
Third, you were only 23 at the time of your offending.
Fourth, apart from this offending, you have been a person of good character, overcoming a traumatic background. You have no criminal antecedents whatsoever.
Fifth, in my view, you have excellent prospects of rehabilitation.
Sixth, some of the time you have spent in custody on remand was made harsher by COVID-19 restrictions.
Seventh, there has been considerable delay in the finalisation of your matter, none of which is your fault. This matter has been hanging over your head for a long time and that itself is a punishment of sorts. You have rehabilitated yourself during the delay.
Eighth, also hanging over your head has been the likely prospect of deportation when you are released from custody.
MANGAR
Turning now to matters particular to you, Mangar.
Procedural History
On 24 March 2019, your offending occurred. You were only 21 at the time of your offending and are now 25.
On 6 June 2019, you were arrested and remanded in custody.
On 29 May 2020, having spent 359 days in custody, you were bailed.
On 7 September 2022, a jury found you guilty of Charges 1, 2 and 4. I extended your bail to your plea hearing.
On 12 December 2022, there was a plea hearing, at the conclusion of which I bailed you to your sentence hearing.
Circumstances of Offender
Personal History
On 25 October 1997, you, Mangar, were born in Kenya. Your parents, who are from South Sudan, had fled to Kenya because of the civil war in their home country. You are the second youngest of six boys.
You also witnessed violence in your formative years, at home and in the community. I am told that your uncle was beaten to death at your home and in your presence. You say your father physically abused you.
In 2006, when you were nine years of age, your family migrated to Australia, residing in New South Wales. Your parents separated soon after.
You began using alcohol and drugs at 13 to 14 years of age.
You completed Year 11 and then completed a carpentry course.
You were gainfully employed in the construction industry, first in Sydney for a year, then in Melbourne. I am told that your drug use escalated when you moved to Melbourne in 2017.
You claim to have been substance affected (having consumed alcohol and Xanax) at the time of your offending.
You were employed at the time of your arrest on 6 June 2019.
Whilst in custody on remand, you undertook a number of programs (including substance abuse programs), as evidenced by a bundle of certificates that were tendered at your plea hearing.
When released on bail on 29 May 2020, you regained employment.
On 26 October 2022, your father died unexpectedly. The circumstances of his death are under investigation.
You have two young daughters with your partner of several years, Nyandiar Ayom. Also living with your immediate family in Truganina are your mother, who is unwell, and four of your brothers.
Psychological Report
Ms Lechner says you expressed ‘immense regret for [your] actions’ (p2). She says you ‘expressed empathy for the victim and shame for [your] behaviour’ (p6). Having regard to Ms Lechner’s report and your character references, which I will turn to shortly, I find that you are remorseful for your offending, albeit you pleaded not guilty.
Ms Lechner says you ‘evidence symptoms of Complex PTSD (ICD-11)’ as a result of your exposure to violence. She said:
Mr. Mangar … completed the International Trauma Questionnaire (2018). This indicated the presence of symptoms of both Post-Traumatic Stress Disorder and Complex Post-Traumatic Stress Disorder. Mr. Mangar responded to questions whilst bearing in mind the assaults he sustained by his father. He evidenced all symptoms of PTSD including, flashbacks, nightmares, avoidance, hyper-vigilance and “sense of threat” as well as high level Disturbances in Self-Organization, namely, affective dysregulation, negative self-concept and disturbances in relationships. These latter symptoms indicate long-term symptoms of Complex PTSD arising from his exposure to Complex Developmental Trauma (p5).
Ms Lechner opines that you are likely to find imprisonment harder because of your PTSD (Verdins 5)[12] and she anticipates that prison will make your condition worse (Verdins 6).[13]
[12](2007) 16 VR 269; [2007] VSCA 102, [32].
[13](2007) 16 VR 269; [2007] VSCA 102, [32].
Ms Lechner says that ‘At interview, [you] impressed as cognitively, socially and emotionally immature with a limited ability to engage in reflective and consequential thinking’ (p6). Ms Lechner says you would benefit from ‘trauma-informed’ counselling (p6).
Ms Lechner states in her report that ‘[p]rior to [your] arrest [you were] using Ecstasy, cocaine, cannabis, Xanax and alcohol on a daily basis’ (p4), and that you were drinking a bottle of Jack Daniels every two days (p4).
I am told you stopped taking drugs after your arrest and are motivated by fatherhood to stay clean and to lead a law-abiding life.
You are a permanent resident of Australia but not a citizen.
As regards the effect on you of the prospect of deportation, Ms Lechner said this:
The prospect of deportation adds another level of anxiety to Mr. Mangar’s psychological distress. He no longer has family overseas, has never lived in South Sudan and is cognizant of ongoing tensions in that country that would no doubt aggravate his symptoms of Complex PTSD (p7).
Character References
I received several character references about you. Nyandiar Ayom, your partner, describes you as a loving partner and father. She also speaks of your considerateness to your mother who is not well. Your mother, in her character reference, says you have changed for the better, making your family your priority. You provide her with considerable emotional and financial support. Three of your brothers (Panyar, James and Nachida) also provided a joint character reference in which they speak of, amongst other things, your devotion to your mother and your immediate family. They describe your offending as completely out of character.
Prospects of Rehabilitation
I consider that you have reasonable prospects of rehabilitation given your youth and absence of prior and subsequent convictions.[14] It is your history of substance abuse — and the connection between substance abuse and your offending — which prevents me from being more optimistic about your rehabilitative prospects. It is imperative that you stay off the drugs. Specific deterrence must be given some weight in sentencing you.
[14]You have a pending hearing for unlicensed driving, to which I attach no significance.
Summary of Mitigating Factors
I will now summarise the factors which I believe should mitigate your sentence.
First, you were only 21 at the time of your offending.
Second, you have no criminal antecedents (although you admit to illicit polydrug use).
Third, I accept that you are remorseful for your offending.
Fourth, some of the time you have spent in custody on remand was made harsher by COVID-19 restrictions.
Fifth, imprisonment is also likely to have been harder for you because of your complex PTSD and is likely to have aggravated your condition.
Sixth, there has been considerable delay in the finalisation of your matter, none of which is your fault. It has been hanging over your head for a long time and that itself is a punishment of sorts.
Seventh, also hanging over your head has been the prospect of deportation.
Eighth, you have reasonable prospects of rehabilitation.
AKOT
Turning now to matters particular to you, Akot.
Procedural History
On 24 March 2019, your offending occurred. You were 23 at the time of your offending and are now 27.
On 20 June 2019 you were arrested, charged and released on bail.
On 7 September 2022, a jury found you guilty of Charges 1, 2 and 4. I remanded you in custody overnight, but on 8 September 2022 granted you bail until your plea hearing.
On 12 December 2022, there was a plea hearing. I bailed you to your sentence hearing.
Circumstances of Offender
Personal History
You were born on 1 January 1996 in what is now South Sudan. You were the third of seven children to your parents.
Your mother died in 2018. Your father is still alive, living in South Sudan with your four younger sisters.
In about 2004, when you were eight, your paternal grandmother took you and your two older brothers to Uganda to prevent you being recruited as child soldiers to fight in the civil war.
In 2008, when you were 12, your paternal grandmother and two uncles brought you and your two older brothers to live in Australia. You initially lived in Newcastle in New South Wales and successfully completed Year 12 there in 2014.
Thereafter you worked at a bar and in crowd control.
In 2017, you moved to Melbourne. Whilst working part-time in the construction industry, you obtained Certificates in Personal Training from the Australian Fitness Academy and worked in that industry. You provided financial support for your family still living in South Sudan.
In August 2018 your mother died. Your hopes of ever seeing her again were shattered. You lost motivation. You stopped working in the Fitness Industry. By the time you felt ready to resume work in that industry, COVID-19 restrictions were in place and opportunities were limited. You did some work in construction and warehousing.
You claim to have been intoxicated on the night of your offending, but you told Carla Lechner that you generally limit your drinking to special occasions. You claim that the night of your offending was the first time you had been out socialising since the death of your mother.
You are in a relationship with Akok and have no dependants. But your sister-in-law, Aimee Osmund, reports that you were a positive father figure to her five children when her husband was stuck in Africa during the pandemic.
You are a permanent resident of Australia but not a citizen.
Psychological Report
Psychologist Carla Lechner assessed you and found that you have no ‘underlying mental health problem, personality disorder or substance abuse issues’ (p1). She assessed you as a low risk of reoffending (p2). She says you ‘expressed deep regret and appropriate victim empathy (p5)’.
Character References
I received several character references about you. Bol Mathiang, a former youth representative with the South Sudanese Community Association and a young lawyer, who also provided a reference for Mathiei, says you have been a positive role model for young members of the community and that your offending was out of character. A former rugby coach of yours, Paul Terry, says he has always found you to be an honest and decent person. Janene Knight, whose son was at high school with you, speaks of your politeness and friendliness. She too declares your offending to be completely out of character.
Prospects of Rehabilitation
In all the circumstances, I consider that you have excellent prospects of rehabilitation.
Summary of Mitigating Factors
I will now summarise the factors which I believe should mitigate your sentence.
First, you have no criminal antecedents. Apart from this offending, you have been a person of good character.
Second, you were only 23 at the time of the offending and are 27 now.
Third, I find that you are remorseful.
Fourth, you have excellent prospects of rehabilitation.
Fifth, there has been considerable delay in the finalisation of your matter, none of which is your fault. It has been hanging over your head for a long time and that itself is a punishment of sorts.
Sixth, also hanging over your head has been the prospect of deportation.
MAJOK
Turning now to matters particular to you, Majok.
Procedural History
On 24 March 2019, your offending occurred. You were 21 at the time of your offending and are now 25.
On 20 November 2019, you were arrested and remanded in custody.
On 20 April 2020, having spent 153 days in custody, you were bailed.
On 7 September 2022, a jury found you guilty of Charges 1, 2 and 4. I extended your bail to your plea hearing.
On 12 December 2022, there was a plea hearing. I bailed you to your sentence hearing.
Circumstances of Offender
Personal History
You were born on 20 July 1997 in what is now South Sudan. It was a time of civil war. Your father was a soldier. You do not remember your parents, whom you have been told are both deceased. You have one younger brother. As children, the two of you lived with extended family.
In 2007, you and your brother moved to Kenya with extended family. The two of you attended a boarding school in Nakurur, Kenya.
In 2009, the two of you moved to Uganda and lived with the sister of an aunt.
In 2011, the two of you came to Australia on refugee visas with your aunt and her two children, settling in Perth where your brother, now aged 21, still lives. You completed year 12 at Aramore Catholic College in Perth.
You commenced a ‘pathway to university’ course but left that to work in the construction industry.
In 2015, aged 18, you moved to Sydney with friends. You worked as a labourer.
You have been in a relationship with Adior Magot since 2015. You have three children from that relationship, two sons and a daughter, aged 5, 3 and 1. Adior works full-time in aged care. You also have two young children from a different relationship. They reside in Canberra with their mother.
In 2018, you moved to Melbourne, living with your cousins who had come across from Perth. You worked in construction and in warehouses.
You were employed at the time of your offending in March 2019.
After your offending and prior to being charged, you moved back to Perth for a few months but returned to Melbourne in June 2019 and recommenced living in Melton. You worked full-time for a recycling company in West Melbourne. You were arrested on the way to work on 20 November 2019 and remanded in custody.
On 20 April 2020, having spent 153 days in custody, you were granted bail.
Since being released on bail you have resided in Melton West with Adior and your three children and have continued working.
You are a permanent resident of Australia but not a citizen.
Character References
I received several character references regarding you. Adior Magot, your partner, says you are very involved in your three children’s lives and that you are a ‘very loving and thoughtful partner’. Stephen Magot, Adior’s father, speaks positively of your commitment to your three children and says you have a ‘good heart’ and are respectful. Your uncle, John Kuir, also praises your commitment to your children. Simon Biar Lueth, a South Sudanese leader in Western Australia, where you lived for a time, says you are remorseful and ashamed of your offending.
Summary of Mitigating Factors
I will now summarise the factors which I believe should mitigate your sentence.
First, you have no criminal antecedents and you have complied with your bail conditions over an extended period.
Second, you were only 21 at the time of the offending.
Third, I find that you are remorseful.
Fourth, I consider that you have excellent prospects of rehabilitation.
Fifth, there has been considerable delay in the finalisation of your matter, none of which is your fault. It has been hanging over your head for a long time and that itself is a punishment of sorts.
Sixth, also hanging over your head has been the prospect of deportation.
Seventh, some of the time you spent in custody on remand was made harsher by COVID‑19 restrictions.
SENTENCES
Before I announce the actual sentences I will impose on each of you, I wish to highlight three things.
First, whilst your offending was serious (particularly in your case, Mathiei), it is now just over four years since it occurred, an inordinate delay.
Second, it appears that all of you have lived law-abiding lives since the offending, which is of great significance in sentencing you, as explained in R v Merrett, Piggott & Ferrari (2007) 14 VR 392; [2007] VSCA 1 by Maxwell P (with whom Chernov JA and Habersberger AJA agreed) at paragraphs [35] and [36] (footnotes omitted):
[35] The relevance of delay lies rather in the effect which the lapse of time – however caused – has on the accused. Delay constitutes “a powerful mitigatory factor”. In particular, it focuses attention on issues of rehabilitation and fairness. As the Court of Criminal Appeal of Western Australia said in 1983 in Duncan v R:
“... where, prior to sentence, there has been a lengthy process of rehabilitation and the evidence does not indicate a need to protect society from the applicant, the punitive and deterrent aspects of the sentencing process should not be allowed to prevail so as to possibly destroy the results of that rehabilitation.
... The very fact of the long delay in bringing the matter to court which led the applicant to have this matter hanging over his head for nearly four years is rightly prayed in aid on his behalf.”
[36] As Vincent AJA pointed out in R v Schwabegger, a legitimate sense of unfairness can develop when the criminal justice process proceeds in what can be perceived as too leisurely a fashion. His Honour cited the well-known passage from R v Todd where Street CJ explained what fairness required in these circumstances:
“Moreover, where there has been a lengthy postponement, whether due to an interstate sentence or otherwise, fairness to the prisoner requires weight to be given to the progress of his rehabilitation during the term of his earlier sentence, to the circumstance that he has been left in a state of uncertain suspense as to what will happen to him when in due course he comes up for sentence on the subsequent occasion, and to the fact that sentencing for a stale crime, long after the committing of the offences, calls for a considerable measure of understanding and flexibility of approach – passage of time between offence and sentence, when lengthy, will often lead to considerations of fairness to the prisoner in his present situation playing a dominant role in the determination of what should be done in the matter of sentence; at times this can require what might otherwise be a quite undue degree of lenience being extended to the prisoner.”
The third and final point I wish to make before I announce the actual sentences concerns you, Mathiei. As I am sure you are aware, Parliament leaves me no option under s 10 of the Sentencing Act 1991 but to impose a minimum term of four years’ imprisonment on you in relation to Charge 1 (because you were the principal offender), despite your plea of guilty, your youth, your prior good character, the inordinate delay in the finalisation of your matter and your rehabilitation whilst on bail. Furthermore, Parliament leaves me no option but to impose a head sentence on Charge 1 which is at least 6 months greater than the mandatory minimum term.
Mathiei
Accordingly Mathiei, on Charge 1, causing serious injury recklessly in circumstances of gross violence, I impose a sentence of four years and six months’ imprisonment. This is the base sentence.
On Charge 2, causing injury recklessly, I impose a sentence of one month’s imprisonment. In relation to Charge 2, the prosecution conceded that it was open to me to order total concurrency and I so order.
That makes a total effective sentence of four years and six months’ imprisonment. I order, as I am required to do, that you must serve four years’ imprisonment before you may be paroled.
But for your plea of guilty, I would have imposed a total effective sentence of five years’ imprisonment with a minimum term of four years and six months’ imprisonment.
I declare that you have already served 581 days of your sentence by way of presentence detention.
Mangar
On Charge 1, causing serious injury recklessly in circumstances of gross violence, I sentence you to a term of imprisonment of 300 days. This is the base sentence.
On Charge 2, intentionally causing injury, I sentence you to 59 days’ imprisonment, cumulative.
On Charge 4, affray, I sentence you to nine months’ imprisonment, wholly concurrent.
That makes a total effective sentence of 359 days’ imprisonment.
I declare that you have already served 359 days by way of presentence detention, meaning you do not have to serve any more time.
Akot
On Charge 1, causing serious injury recklessly in circumstances of gross violence, I sentence you to a term of imprisonment of 300 days. This is the base sentence.
On Charge 2, intentionally causing injury, I sentence you to 59 days’ imprisonment, cumulative.
On Charge 4, affray, I sentence you to nine months’ imprisonment, wholly concurrent.
That makes a total effective sentence of 359 days’ imprisonment.
I declare that you have already served one day of your sentence by way of presentence detention.
Majok
On Charge 1, causing serious injury recklessly in circumstances of gross violence, I sentence you to a term of imprisonment of 300 days. This is the base sentence.
On Charge 2, intentionally causing injury, I sentence you to 59 days’ imprisonment, cumulative.
On Charge 4, affray, I sentence you to nine months’ imprisonment, wholly concurrent.
That makes a total effective sentence of 359 days’ imprisonment.
I declare that you have already served 153 days of your sentence by way of presentence detention.
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