Director of Public Prosecutions v Monoah & Akec

[2023] VCC 337

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. 22-00429 & 22-00323

DIRECTOR OF PUBLIC PROSECUTIONS

v

MALOK MONOAH & SORA AKEC

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JUDGE:	HIS HONOUR JUDGE WRAIGHT
WHERE HELD:	Melbourne
DATE OF HEARING:	20 February 2023
DATE OF SENTENCE:	28 February 2023
CASE MAY BE CITED AS:	DPP v Monoah & Akec
MEDIUM NEUTRAL CITATION:	[2023] VCC 337

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentencing.

Catchwords:              Plea of guilty – Causing serious injury intentionally – False imprisonment – Commit indictable offence whilst on bail – Contravene a conduct condition of bail without reasonable excuse – Refuse or fail to comply with a request made a police officer – Offending committed in company – Relevant criminal history – Reasonable prospects of rehabilitation – Bugmy principles enlivened – COVID-19 pandemic.

Legislation Cited:      Crimes Act 1958 ss 16, 456AA(3)(a); Bail Act 1977 ss 30A(1), 30B; Sentencing Act 1991 ss 6AAA, 18.

Cases Cited:Worboyes v The Queen [2021] VSCA 169; Bugmy v The Queen (2013) 249 CLR 571; Director of Public Prosecutions v Herrmann [2021] VSCA 160.

Sentence:                  Imprisonment for a period of 3 years and 3 months with a non-parole period of 2 years in each case.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr D Ellwood	Office of Public Prosecutions
For Mr Malok Monoah	Ms K Ballard	James Dowsley & Associates
For Ms Sora Akec	Mr D De Witt	Ann Valos Criminal Law

HIS HONOUR:

Introduction

1Malok Monoah and Sora Akec, each of you is pleading guilty to an Indictment containing two charges:

(a) one charge of causing serious injury intentionally contrary to s 16 of the Crimes Act 1958 (‘Crimes Act’), which carries a maximum penalty of 20 years imprisonment (Charge 1); and

(b)   one charge of false imprisonment, contrary to Common Law, which carries a maximum penalty of 10 years imprisonment (Charge 2).

2Malok Monoah, you have also pleaded guilty to the related summary offences of:

(a) committing an indictable offence whilst on bail, contrary s 30B of the Bail Act 1970 (‘Bail Act’), which carries a maximum penalty of 3 months imprisonment (Summary Charge 8);

(b) contravening a conduct condition of bail without reasonable excuse contrary to s 30A(1) of the Bail Act, which carries a maximum penalty of 3 months imprisonment (Summary Charge 9); and

(c) refusing or failing to comply with a request made by a police officer contrary to s 456AA(3)(a) of the Crimes Act, which carries a maximum penalty of 5 penalty units (Summary Charge 10).

3Sora Akec, you have also pleaded guilty to the related summary offence of stating a false name in response to a request made by a police officer, contrary to s 456AA(3)(b) of the Crimes Act, which carries a maximum penalty of 5 penalty units (Summary Charge 12).

4You have both admitted your criminal records.

Circumstances of the offending

5A prosecution opening was tendered on the plea and may be summarised as follows:

6The victim of these offences was a then 32 year old woman Sisilia Meshwang. She was at the time homeless and occasionally living with her cousin Ayen Akot on level 14 of the high-rise apartments at 229 Hoddle Street, Collingwood.

7You are two of the four co-accused in this case. Mr Monoah, you were  born in September 1994 and were aged 26 at the time of the offences. Ms Akec, you were born in December 1992 and were aged 29 at the time of these offences.

8The two other accused in this matter are Nenawr Morwell and Achol Kuer. Nenawr Morwell was sentenced in 2022 after entering a plea of guilty, and Ms Kuer has entered a plea of not guilty.

9Ms Akec, you and the victim have known each other since you were children, immigrating to Australia with your respective families in the mid to late 1990s.

10Mr Monoah, the victim knew you and Ms Morwell and Ms Kuer through socialising and drinking alcohol together at the Harmsworth Street Reserve, close to the high-rise apartments at 229 Hoddle Street.

11On Monday 15 March 2021 at about 12:45pm, you, Ms Akec, arrived at Apartment 82 at 229 Hoddle Street after travelling from Werribee. You were intending to stay a few days with Mr Monoah and Ms Kuer, who lived together in Apartment 82.

12Later in the afternoon of that date, the victim was socialising with you and Ms Kuer and others, both in Apartment 82 and in Harmsworth Reserve.

13At about 1:00am on the following day, 16 March 2021, the victim visited a friend, Shahzadi Perez, on level 3 of the 229 Hoddle Street high-rise apartments. Another woman, Mayen Maker (also known as Maze), was also present. Ms Perez told the victim that she wanted to go and get some cash out. The victim, Ms Perez and Ms Maker left the apartment and travelled to the ground floor.

14The three of them left the apartment block and walked to a petrol station where Ms Perez got into a taxi with a friend and left, leaving the victim with Ms Maker. The victim walked back to the apartment block at 229 Hoddle Street with Ms Maker. The victim met two male associates near the front door. Greetings were exchanged. The victim and the two male associates travelled in the lift up to level 14, where the victim was residing.

15A few minutes later a taxi came to the front of 229 Hoddle Street. It contained Ms Perez and her friend, Troy Marsh. They travelled by elevator to Level 3 where Ms Perez lived.

16Mr Monoah, at 2:51am, you and Ms Kuer are captured on CCTV entering an elevator at 229 Hoddle Street on level 8 with the two male associates earlier greeted by the victim at the front of the building. The four of you travelled to the ground floor and walked away from the apartment block.

17At 3:51am, the victim is captured on CCTV travelling by elevator to level 8. A few seconds later you and Ms Kuer are seen travelling by elevator also to level 8.

18At this time of the morning then, the victim, you and Ms Kuer are all on Level 8. You and Ms Kuer were living at Apartment 82 on that level. It is believed you were all socialising at this time in Apartment 82.

19At 4:14am, the victim left level 8 with the two men she had earlier greeted, and they all travelled to the ground floor together.

20Mr Monoah, you and your cousin, Ms Maker, had arranged to meet. However, Ms Maker failed to show. You tried contacting her but were unsuccessful.

21Events now move to the afternoon of 16 March 2021.

22At 2:32pm, you, Mr Monoah, phoned Ms Perez and left voicemail messages for her asking about the whereabouts of Ms Maker. Between 2:33pm and 2 :47pm, you and Ms Perez exchanged a series of 15 text messages. Ms Perez told you that Ms Maker had been kidnapped and that the victim was responsible due to a drug debt.

23You then showed these texts to Ms Akec, Ms Kuer and Ms Morwell.

24It was this belief, the prosecution contends, that motivated all that was to follow.

25During the evening of 16 March 2021, the victim was socialising with a group of approximately fifteen people, including at times Ms Kuer and Ms Morwell, in the Harmsworth Reserve, in and around a gazebo.

26At 11:13pm, the victim travelled by elevator to level 8. Ms Akec, you followed her there, accompanied by Ms Morwell. You and Ms Morwell told the victim that you needed to talk to her about something. The three of you entered Apartment 82. Mr Monoah and Ms Kuer were already there.

27The two of you and Ms Morwell began to ‘interrogate’ the victim about the whereabouts of Ms Maker, seeking to find out what had happened to her. The victim explained that she had last seen Ms Maker a little after 1:00am on 16 March. Your group clearly did not believe her. You forced her into a bedroom where the three of you continued to ‘interrogate’ her. You punched and kicked her to the head and body, and ripped off her headscarf. The victim pleaded with you to stop, reasserting that she had told you everything she knew about the last sighting of Ms Maker. She was emphatic: ‘That’s all I’ve seen is what I’ve told you guys. What’s in it for me to lie . . . What am I going to gain out of it?’

28Ms Morwell told Ms Kuer, ‘…we just need Sisilia [the victim] to tell the truth.’ You, Ms Akec, choked and hit the victim, loud enough for Ms Kuer to hear what was happening from the next room. The victim was crying and repeatedly trying to tell her story.

29Ms Kuer demanded that the victim take your group to ‘…the houses you last took Maze.’

30Mr Monoah, at 11:53pm, CCTV captured you and Ms Kuer leading the victim into the elevator on level 8 with Ms Akec and Ms Morwell following. The victim is already holding her abdomen and her face is swollen around the eyes and there is blood on her lip. In the elevator, Ms Morwell laughed and held an open palm to the victim’s stomach.

31The four of you with your victim went first to level 3 but Ms Perez did not answer the door of her apartment. Whether she was inside is unknown. You, Mr Monoah, called her phone but it was not answered.

32At midnight, the four of you lead the victim into the elevator and you travelled to the ground floor. At one stage, you, Mr Monoah, placed your arm outwards to stop the victim leaving the elevator.

33Mr Monoah, you and Ms Morwell lead the way from 229 Hoddle Street to the apartments at 253 Hoddle Street. Ms Akec, you and Ms Kuer were behind the victim compelling her to follow.

34Your group went to Troy Marsh’s apartment in search of Ms Maker. The door was not answered despite it being kicked several times. Ms Akec, you and your two female co-accused continued hitting and kicking the victim, who was still trying to convince you she knew nothing about the whereabouts of Ms Maker.

35The four of you became more aggressive, hitting the victim to the face and stomach. Ms Akec, you grabbed her around the throat and gouged at her eyes to such an extent that the victim told you that she was ‘blind’.

36At 12:10am, CCTV captured you, Ms Akec, pushing the victim into the elevator, causing her to fall to the floor in the presence of your three co-accused.

37At this point the CCTV captures Ms Kuer looking at the CCTV camera and then assisting the victim to her feet. The victim was struggling to stand due to her injuries and had to lean on the wall. At this point, you, Ms Akec, took the victim’s arm and compelled her to follow the other co-accused.

38It was at stage that the victim asked for help and told you she was feeling ‘a bit funny’. Ms Akec, you together with Ms Morwell continued to punch her. While exiting the foyer of 253 Hoddle Street, Ms Akec, you are seen on CCTV holding the victim on her right side and pushing her forcefully forward with your three co-accused following.

39Your group then walked to Dight Street, Collingwood where you purchased a bottle of Bailey’s liquor. You dragged the victim with you, continuing to hit her to the head and body. You were seen together by a number of people. One of those people, a Mr Abiel, talked to your group. The victim broke away from you and pleaded with Mr Abiel for help. Notwithstanding Mr Abiel saying, ‘enough, enough,’ you, Ms Akec, continued to strike the victim even while she was hanging onto Mr Abiel. He attempted to protect the victim’s head and pushed you, Ms Akec, away. Eventually, however, he placed the victim on the ground close to the gazebo in Harmsworth Reserve where the two of you and your two co-accused had walked.

40Ms Akec, at 12:36am, you  picked the victim up from the ground and walked her to the gazebo where she sat her on a seat. You continued to assault the victim to the head and body. You pulled the victim to the concrete surface of the gazebo. Mr Abiel attempted unsuccessfully to intervene. He then left the victim with your group after urging you all again to stop.

41The four of you persisted in your ‘interrogation’ of the victim, claiming she was lying and that she was not telling you something. Ms Akec, you continued your assault of the victim’s head by kicking and stomping. At 12:50am, you, Ms Akec, struck the victim to the head with the liquor bottle knocking out several teeth. This assault continued until approximately 1:12am, when you, Ms Akec, along with your two female co-accused, dragged the inert victim onto the grass and left her lying there motionless.

42At 1:21am,  the four of you dragged the victim to Unit 1 at 72 Vere Street, Collingwood, the residence of Abdirahan Yusuf. You dragged the victim into the unit along the hallway and into the rear bedroom where she collapsed on the floor.

43Ms Akec, you, along with Ms Morwell and Ms Kuer, continued to hit the victim. Mr Monoah, you kicked her forcefully to the head twice. The victim became unconscious. Blood was pooling from her head onto the floor. One or more of you pulled her clothing and underwear down to mid-thigh leaving her half naked. Ms Akec, it is not contended that you took part in this act. The victim was still unconscious.

44Thereafter the victim was tied up with rope around her neck, shoulders, wrist and legs and moved to the bathroom in the unit, where she was tied to the bathroom sink. Again, Ms Akec, it is not contended that you took any part in these acts.

45In the early hours of 17 March, Mr Yusuf and his partner returned to their unit in Vere Street. They went first to their bedroom but then heard a female screaming, ‘I need help. Help me.’ They entered the bathroom and discovered the victim. Mr Yusuf recognised the victim and with some difficulty untied her. Mr Yusuf’s partner called ‘000’ for help.

46Police attended and found the victim still on the bathroom floor with severe swelling to her face and cheek area, laceration to her lip and blood covered clothes. She complained particularly of severe pain in her abdomen and groin area.

47Paramedics attended and took the victim by ambulance to Royal Melbourne Hospital for treatment. She was categorised as a time critical patient.

Medical evidence

48On 18 March 2021 the victim was examined and assessed by Forensic Medical Officer Dr Joann Parkin while the victim was under a general anaesthetic awaiting surgery.

49Following admission and surgery the victim remained an in-patient at Royal Melbourne Hospital for 21 days, until 7 April 2021.

50The victim sustained the following injuries:

(a)   Facial injuries with bilateral periorbital oedema and eye haemorrhage;

(b)   Her eyes were so swollen she was unable to see;

(c)   Lip laceration requiring plastic surgeon’s intervention;

(d)   Right cheek and ear lacerations,

(e)   Neck abrasions;

(f)    A perforated colon (large intestine) at the hepatic flexure requiring resection surgery; a right hemicolectomy. This procedure involves the removal of the right side of the colon and surgically attaching the small intestine to the remaining portion of the colon. The hepatic flexure is the sharp bend between the ascending colon and the transverse colon;

(g)   Tooth fractures; and

(h)   Tooth avulsions.

51The victim required on-going outpatient treatment for her abdominal injuries, teeth and mouth injuries, lip laceration and elbow injury.

Arrests

52Following various enquiries police attended at Apartment 82 at 229 Hoddle Street apartments at approximately 12:15pm on 17 March 2021. Inside the apartment they located the two of you, your two co-accused and two others. The two of you and your two co-accused were arrested.

53Mr Monoah, you refused to provide your details to police. Ms Akec, you initially provided false details and then properly identified yourself.

Mr Monoah’s police interview

54Mr Monoah, in your record of interview with  police, you told them that you had been drinking whiskey on the night of 16 March. You had drunk two or three bottles and had smoked some marijuana with your two friends, Ms Kuer and Ms Morwell, who you knew as Suzanne, at Apartment 82. You thought you might have gone to Harmsworth Park on a couple of walks but couldn’t remember because you had had too much to drink. You had never met the victim and did not know her. You did not touch anyone or assault anyone and did not know anyone had been assaulted. You had never been to Unit 1, Vere Street.

55You then said you had seen two girls fighting. You said that when you last saw the victim, she only had blood coming from her mouth, she was not badly injured and you then left with Ms Kuer to buy some liquor.

56You were then released from custody.

57On 5 April 2021, police re-arrested you and interviewed you further. You told police you had been drinking at Apartment 82 and then went to the park where you met your friend Abiel. You said Abiel left and then you yourself left and went to an apartment on level 9 at 229 Hoddle Street.

58You said you had called and texted Ms Perez looking for your cousin Ms Maker. You heard that Ms Maker had been kidnapped. The last person she was with was the victim. You told police you do not hit girls and that you just wanted to talk. The victim came to Apartment 82 with the girls and you asked her what happened with Ms Maker. You said you read the text you had received from Ms Perez to the victim and she attempted to explain but kept changing her story. That’s when the assault started. You told police you tried to stop the assault.

59You confirmed that you all went to Ms Perez’s apartment but there was no answer there. Your group then went to level 11 at 253 Hoddle Street and there was no answer there either. Your group then went to get some alcohol and went to the park.

60You told the police that at the park the assault got nastier and nastier. The victim was getting hit and kicked. You all then went to a house and took the victim into the bathroom and used ‘Tabasco’. You told the police you were not violent, you just wanted answers. The victim was tied up. You denied assaulting the victim.

Ms Akec’s police interview

61Ms Akec, in your record of interview you told police you had been drinking from about 9:30am to 8:00pm on 16 March at which time you went up to Apartment 82, because you were drunk. You had seen Mr Monoah arguing with the victim earlier in the day. At about 1:00am on 17 March, you heard a fight in the gazebo downstairs. You saw it from Apartment 82. Mr Monoah was pushing the victim. It only lasted a minute. Everybody came upstairs at about 4:00am. The victim was bleeding from the mouth. That was caused by Mr Monoah. You believed it was because of a ‘drug issue’.  

62You then told the police that there had been an argument with Mr Monoah about Ms Maker and the victim owing Mr Monoah $150 for drugs and owing you $50. You got really angry with the victim and started dragging and pushing her under the gazebo.

63You then said you got in a fight with the victim. You hit the victim with your hand and the victim fell to the ground; you were crying and scared. While you were under the gazebo, you swung the Bailey’s bottle with a lot of force and hit the victim in the mouth, telling her not to lie. You went to Yousef’s house and took the victim to the back room. The victim was on the floor. You continued to slap the victim. Mr Monoah took over hitting the victim. The victim was begging, saying ‘sorry, sorry, sorry’. She couldn’t get up. You said you stomped on the victim’s head – ‘She just kept going on bleeding, bleeding, bleeding. Then she was unconscious.’ You yelled at the victim but she did not move.

64You went outside for a cigarette. At that point you were thinking ‘I fucked up’.

Nature and gravity of the offending

65Having sentenced Nenawr Morwell on 13 December 2022, my remarks at that time as to the nature and gravity of the offending are apposite in this instance and I will largely reproduce them in these sentencing remarks.

66Causing serious injury intentionally is an inherently serious offence, reflected in the maximum penalty of 20 years imprisonment. While the offence may be committed in a number of ways, in this instance, in my view, your conduct, together with that of your co offenders, represents a serious example of the offence. The assault on the victim involved a sustained attack over a number of hours at various locations, resulting in her becoming seriously injured and ultimately, unconscious. Further, the victim was held captive over the period in which the injuries were inflicted, unable to escape the attack, which is the basis of Charge 2.

67While the victim did not wish to provide a victim impact statement, plainly, this would have been a frightening experience for her and it is clear on the evidence, that she required significant ongoing treatment involving a number of medical professionals.

68In relation to the roles you each played in the assault, Ms Ballard, who appeared on behalf of you, Malok Monoah, and Mr De Witt, who appeared on behalf of you, Sora Akec, both conceded that while you both individually engaged in different acts in relation to the victim, with respect to parity, there is not a significant distinction between you. In that regard, I also take into account that, in relation to Ms Morwell, the prosecution made a similar submission. As noted by Mr Ellwood, who appeared on behalf of the Director of Public Prosecutions, while each offender may have contributed in different ways to the assault (other than Ms Keur, who played a lesser role), it is not possible to draw a distinction between the other co-offenders, as each of you played an active role; in the words of Mr Elwood, all lending your support.

Personal circumstances

Malok Monoah

69Malok Monoah, you are now 28 years old. A neuropsychological report authored by clinical neuropsychologist Dr Harriet Downing, dated 13 February 2023, was tendered on the plea. Also tendered on the plea was a psychological report authored by forensic psychologist Carla Ferrari, dated 5 July 2022. These two reports provide a comprehensive overview of your personal and psychological history.

70You were born in Sudan and migrated to Australia as the age of four, along with your mother (who you later discovered was not your biological mother and in fact your stepmother) and your seven half-siblings. You have a biological brother with whom you maintain a relationship. Your father was a soldier in Sudan and remained there, passing away in 2020. You maintained contact with him growing up via phone, and last saw him in 2013.

71Your stepmother and half-siblings were abusive towards you and your brother. Due to the breakdown in your relationship with your stepmother, who mistreated you and your brother as you were not biologically her children, you left home at age 10 to live with paternal relatives, but this arrangement could not be sustained, because, by your account, your stepmother undermined the relationship between you and those relatives. This resulted in you being returned into the care of your stepmother at age 14.

72At school, you struggled academically, but you still enjoyed being there as it was your only escape from being at home. You were ultimately expelled in Year 9 for punching another student after they had been racist towards you. You became involved with an antisocial peer group and entered the criminal justice system as a child, being remanded to Parkville for the first time as a 16 year old. The only address you could be bailed to was your stepmother’s, which led to you intentionally breaching your bail in order to return to youth detention. Upon release, you went to stay with your cousin and attempted a return to school, but left as you were unable to keep up with the work.

73Over the years you have gained various licences and trade qualifications, but were unable to secure work due to not having any industry contacts. You worked in warehousing in 2019 but your employment was terminated as you struggled with the work, finding it difficult to pay attention to names, dates and order information. You are completing several certificates in custody in various fields.

74You have been in one long-term relationship which commenced when you were 16 years old. You have a five year old daughter from that relationship, which started to break down after you were remanded in October 2019 in relation to previous offending. You do not currently have a relationship with your daughter and your ex-partner has initiated a family violence intervention order against you.

75Ms Ferrari opines that your early life experiences contributed to the development of post-traumatic stress disorder (‘PTSD’) and persistent depressive disorder (‘PDD’), with episodes of superimposed major depression.

76You have not been formally diagnosed with an intellectual disability as an adult, but it is apparent from the tendered reports that you experience significant cognitive challenges on a day to day basis. In Dr Downing’s assessment, you presented with a borderline IQ of 74 and a Working Memory Index in the ‘extremely low’ range. You also tended to be ‘overwhelmed by the presentation of lengthy verbal information’ and ‘benefited from repetition’. Dr Downing noted that throughout your assessment, you seemed to suffer from ‘poverty of thought’, in that you were often slow to generate responses and were a ‘vague historian’. You reported to Dr Downing a longstanding history of difficulty in managing your emotions, ‘in particular anger’, and displayed ‘a tendency to reactivity’.

77You have recently obtained a National Disability Insurance Scheme (‘NDIS’) plan, which will support you post release and assist with your safe transition back into the community.

78You have a history of substance misuse and were drug affected at the time of this offending. You have used cannabis from the age of 16 and have used other illicit substances following your 2019 offending, including MDMA and methamphetamine. You have also engaged in binge drinking. Ms Ferrari is of the view that you developed alcohol and cannabis use disorders as a result of self-medicating your untreated mental health conditions. She also believes that you developed stimulant use disorder due to an exacerbation of your symptoms following the breakdown of your relationship with your ex-partner and not being permitted contact with your daughter, as well as the unexpected deaths of your father and cousin. You have engaged in AOD counselling in the past but found it was not beneficial and you continued to use substances during that period. You reflected to Ms Ferrari that your polysubstance misuse was likely an attempt to supress your depression and trauma symptoms.

79While Dr Downing acknowledged that your neurodevelopmental conditions are life long and would have been present at the time of the offending, she is also of the view that you would be expected to be in control of your behaviour and know that your behaviour was morally wrong.

Sora Akec

80Sora Akec, you are now 29 years old and the mother of five children. You are of Sudanese heritage, and were born in a refugee camp in Kenya, moving to Australia with your family when you were three years old. You are the oldest of five sisters. You have a positive relationship with your 24 year old sister, who remains supportive and assists your father with caring for your children.

81Tendered on the plea were two psychiatric reports authored by consultant forensic psychiatrist Dr Rajan Darjee, dated 18 January 2022 and 10 July 2022, along with a psychological report authored by forensic psychologist Gina Cidoni dated 18 August 2022. These three reports describe your upbringing as characterised by abuse at the hands of family members. You report to Dr Darjee that you were ‘beaten repeatedly’ from the age of five or six until you were about 11 or 12 years old. This violence was inflicted by your parents, aunts and uncles, and you describe these beatings, sometimes with weapons like sticks, as ‘part of the culture’ and a way to ‘discipline children’.

82Your parents separated when you were seven years old. Your mother was and remains a devout Christian. You felt that she did not understand you and never showed you any affection or kindness. When you disclosed your mental health symptoms to your mother, she told you that you were allowing the devil to control you and would beat you. By contrast, you were your father’s favourite and he would take you shopping for clothes, a thing he did not do for your sisters. Nontheless, you suffered family violence from both of your parents.

83After the separation, your mother was unable to care for you and your siblings and she was admitted to a psychiatric hospital when you were 10 years old. An expectation was placed upon you to look after your siblings when you were still only a child yourself. You and your sisters went to live with your father, who worked as a migration agent at the Coroner’s office.

84You struggled to keep up in school and were expelled at the age of 13 for disciplinary issues. You were a shy and anxious student who struggled to make friends. At school, you were subjected to racism and provided limited additional social and academic support. When you parents were called to school to discuss concerns about your progress, you were beaten.

85You re-enrolled at a second secondary school but left at age 14 when you discovered you were pregnant with your first child. The father of your child, who was older than you, was sentenced to a term of imprisonment when you were in your first trimester. He plays no role in your child’s life. You moved back in with your mother but she continued to abuse you. However, you felt you had no option but to stay, in order to support your child.

86You moved out at age 16 after meeting your ex-partner Mawat and falling pregnant by him. He was violent to you to the point where you felt you had to return to your mother’s house for support. After you and Mawat reconciled, you had another child together, and shortly after his birth, you ended the relationship and fled to Western Australia to live with your cousin. You left your three children in the care of your father. You stayed in Western Australia for two years before returning to Victoria to live with your mother. Your children remained with your father following a dispute about how best to raise them. I note your father ceased his violent disciplinary practices following intervention by DFFH and is now a full time carer for your children.

87You eventually left your mother’s home after a dispute with one of your sisters, which resulted in an exclusionary intervention order being made. As your father had forbidden you from returning to his house, you were left homeless. At this time you were also fleeing your abusive ex-partner Deng Akot, who was also the father of your two youngest children.

88In the year preceding this current offending, you were homeless, estranged from family and struggling to manage worsening mental health symptoms, which included dissociation, paranoia, self-harm, hearing voices and experiencing blackouts. You have a history of misusing substances like alcohol and methamphetamine, and were both alcohol and drug affected at the time of the offending. 

89Dr Darjee, who assessed you during your remand period, believes that your serious and chronic childhood trauma is the genesis of these symptoms. Diagnostically, you meet the criteria for severe borderline personality disorder, complex PTSD and dissociative disorder. Ms Cidoni notes your cognitive functioning appears to be very impaired, which in turn impacts upon your executive and self-regulatory abilities. She opines that your low intellectual capacity means you are ‘easily led and easily taken advantage of’ and that you ‘cannot foresee consequences’.

90A letter from Karen Bouhadana of Women’s Housing Ltd was tendered, which outlines the support you will receive from the organisation post-release. Through the Women’s Justice Diversion Program and the ACSO Restart program, you will receive motel accommodation while you work with your supports towards securing alternative long-term housing.

91You have the support of your parents during your time in custody. Your father provided a character reference which speaks to the challenges you have faced and affirms his support of you. 

Sentencing considerations

92I first take into account your pleas of guilty. Unlike your co-offenders Ms Morwell and Ms Kuer, neither of you conducted a contested committal. Your pleas were entered at an early stage in the proceedings and therefore have a significant utilitarian benefit. They also carry an additional weight which must be reflected in a further amelioration in sentence, as they were entered in circumstances where the pandemic has caused a substantial backlog of cases in the criminal justice system.[1]

[1] Worboyes v The Queen [2021] VSCA 169 at [39].

93I turn now to individual sentencing considerations, beginning with you, Mr Monoah.

94Whilst Ms Ballard did not seek to rely specifically upon the Verdins principles, correctly in my view, it is clear that the matters raised in relation to your cognitive limitations can be taken into account in the general sentencing discretion. Your neurodevelopmental condition, while not amounting to an intellectual disability, is nonetheless debilitating and has clearly contributed to your poor decision making and abuse of drugs.

95Ms Ballard submitted that the trauma and mistreatment you suffered in your early years enlivens Bugmy principles.[2] As noted in Director of Public Prosecutions v Herrmann,[3] the ‘general’ approach enunciated in Bugmy is that the relevance of depravation to sentencing does not depend on a nexus or evidentiary foundation before a disadvantaged background can be taken into account – the ‘general’ approach relating to circumstances of the offender where he or she has been raised in an environment of violence and has been marred by that experience. As such, I accept in the circumstances that Bugmy principles have application in this instance.

[2] Bugmy v The Queen (2013) 249 CLR 571.

[3] [2021] VSCA 160, [36] and [45].

96As to your prospects of rehabilitation, I note that Dr Downing acknowledges your longstanding history of difficulty managing your emotion, in particular anger and your tendency to reactivity. Both Dr Downing and Ms Ferrari recognise that you need significant ongoing intensive support and supervision in order to remain substance free and maintain a prosocial lifestyle. In the circumstances your prospects can only be approached with caution, however if you are granted parole and accept the services that will be provided to you, your prospects may improve.

97I turn now to you, Ms Akec.

98Mr De Witt submitted on your behalf that there is some basis for finding that you feel remorseful for your actions. You authored a letter of apology, tendered on the plea, which suggests a level of self-reflection that I take into account. Dr Darjee opines that you are not ‘inherently remorseless, callous or lacking in empathy’, even though you may appear ‘detached and unconcerned’. While letters such as yours are often viewed with some caution, in my view since being remanded you have gained insight into your conduct and appreciate the significant impact the assault has had on the victim and as such , I accept that you have shown a degree of genuine remorse.

99Mr De Witt relied upon the matters pertaining to your mental illnesses and cognitive limitations to support the application of the Verdins principles, and this was accepted by the prosecution. Based on the evidence, as helpfully summarised in the written submissions filed on your behalf, I accept that all limbs of Verdins have application in this instance.

100Without again summarising the evidence or the principles, I also accept that in your case Bugmy principles have application.

101As to your prospects of rehabilitation, like Mr Manoah, you will also require significant support on your release, however you have already engaged with a number of professional services while in custody and appreciate the need to continue to utilise the supports that will be offered to you. As noted, I accept that you have gained insight whilst on remand and in all the circumstances I assess your prosects as reasonable.

102In relation to both of you, general deterrence and denunciation of your conduct are relevant sentence considerations. Without repeating the details of your conduct, attacking and seriously injuring a young women in company, whilst holding her against her will is serious conduct that must be deterred and denounced. As to specific deterrence, you both have relevant prior criminal histories and long term substance abuse problems, and as such, specific deterrence has a role to play in the sentencing calculus.

103Returning to parity, as was discussed during the plea hearing, while it is difficult to distinguish you in relation to the assault, your personal circumstances pull in both ways for each of you and in that regard it is also difficult to distinguish you for parity purposes. It is also difficult to meaningfully differentiate between the two of you and Ms Morwell. As such, in all the circumstances, I intend to impose the same sentence in relation to each of you that was imposed on Ms Morwell.

104Finally, I take into account that the time you have both served on remand, and any further period of imprisonment has been subject to prisoners restrictions as a result of the ongoing pandemic resulting in extended periods of isolation and restrictions on services offered.

Sentence

105Mr Monoah and Ms Akec, would you please stand.

106Malok Monoah and Sora Akec on Charge 1, intentionally causing serious injury, you are convicted and sentenced to 3 years and 3 months imprisonment. On Charge 2 false imprisonment, you are convicted and sentenced to 12 months imprisonment. The sentence on Charge 2 will be wholly concurrent with the sentence imposed on Charge 1.

107In relation to you Malok Monoah, on related summary charge 8, committing an indictable offence whilst on bail and related summary charge 9, contravening a conduct condition of bail, you are convicted and sentenced to 1 month imprisonment on each charge. On related summary charge 10, refusing or failing to comply with a request made by a police officer, you are convicted and fined $250.

108In relation to you Sora Akec, on related summary charge 12, refusing or failing to comply with a request made by a police officer, you are convicted and fined $250.

109In relation to each of you, I direct that you serve 2 years before becoming eligible for parole.

110Pursuant to s 18 of the Sentencing Act 1991 (‘Sentencing Act’), in relation to you Malok Monoah, I declare that 693 days be reckoned as the period of imprisonment already served under the sentence I have imposed. That does not include today. In relation to you Sora Akec, I declare that 713 days be reckoned as the period of imprisonment already served under the sentence I have imposed. That does not include today

111Pursuant to s 6AAA of the Sentencing Act, I indicate that had you not pleaded guilty, I would have sentenced each of you to a period of 5 years imprisonment with a non parole period of 3 years and 6 months.