Director of Public Prosecutions v Morwell

[2022] VCC 2266

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-22-00434

DIRECTOR OF PUBLIC PROSECUTIONS

v

NENAWR MORWELL

---

JUDGE:	HIS HONOUR JUDGE WRAIGHT
WHERE HELD:	Melbourne
DATE OF HEARING:	5 December 2022
DATE OF SENTENCE:	13 December 2022
CASE MAY BE CITED AS:	DPP v Morwell
MEDIUM NEUTRAL CITATION:	[2022] VCC 2266

REASONS FOR SENTENCE
---

Subject:CRIMINAL LAW – Sentencing.

Catchwords:              Plea of guilty – Causing serious injury intentionally – False imprisonment – Commit indictable offence whilst on bail – Relatively young offender – Relevant criminal history – Offending committed in company – Good prospects of rehabilitation – COVID-19 pandemic.

Legislation Cited:      Crimes Act 1958 ss 16; Bail Act 1977 s 30B; Sentencing Act 1991 ss 6AAA, 18.

Cases Cited:Worboyes v The Queen [2021] VSCA 169.

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

---

APPEARANCES:	Counsel	Solicitors
For the DPP	Mr D Ellwood (Plea) Mr J Mighell (Sentence)	Office of Public Prosecutions
For the Accused	Mr J Lavery	Chris McLennan Solicitor

HIS HONOUR:

Introduction

1Nenawr Morwell, you have pleaded guilty to:

(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).

2You have also pleaded guilty to the related summary offence of commit an indictable offence whilst on bail, contrary to s 30B of the Bail Act 1977, which carries a maximum penalty of 3 months imprisonment (Summary Charge 8).

3You have also admitted your Criminal Record.

Circumstances of the offending

4A prosecution opening was tendered on the plea and may be summarised as follows:

5The victim of your offending was a then 32 year old woman, Sisilia Meshwang, who was at the time homeless and occasionally living with her cousin on level 14 of the high-rise apartments at 229 Hoddle Street, Collingwood.

6There are four co-accused in this case, including you. You were aged 25 at the time of the offending. The names of the other co-accused are as follows:

(a)   Malok Monoah, aged 26 at the time of the offending;

(b)   Sora Akec, aged 29 at the time of the offending; and

(c)   Achol Kuer, aged 23 at the time of the offending.

7The four of you knew the victim through socialising and drinking together at the Harmsworth Street Reserve in Collingwood, close to the 229 Hoddle Street apartments.

8On 15 March 2021, at about 12:45pm, Ms Akec arrived at an apartment at 229 Hoddle Street from Werribee. She was intending to stay a few days with Ms Monoah and Ms Kuer, who lived together in that apartment.

9Later in the afternoon on the same day, the victim was socialising with Ms Akec and Ms Kuer and others both in the apartment and in Harmsworth Street Reserve.

10At around 1:00am the next day, 16 March 2021, the victim visited a friend, Shahzadi Perez, on Level 3 of the 229 Hoddle Street apartments. Another woman, Mayen Maker, 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.

11They 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.

12A 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.

13At 2:51am, the co-accused Mr Monoah 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. They travelled to the ground floor and walked away from the apartment block.

14At 3:51am, the victim was captured on CCTV travelling by elevator to Level 8. A few seconds later, Mr Monoah and Ms Kuer were seen travelling by elevator to Level 8 as well.

15At this time of the morning, the victim, Mr Monoah and Ms Kuer were all on Level 8, where Mr Monoah and Ms Kuer lived in apartment 82. It is believed they were all socialising at this time in the apartment.

16At 4:14am, the victim left Level 8 by elevator with the two men she had earlier greeted. They travelled to the ground floor together.

17Mr Monoah and his cousin, Ms Maker, had arranged to meet. Ms Maker failed to show. Mr Monoah attempted to contact her but was unsuccessful.

18On 16 March 2021, at 2:32pm, Mr Monoah phoned Ms Perez and left voicemail messages for her, asking about the whereabouts of Ms Maker. Between 2:33pm and 2:47pm, Mr Monoah and Ms Perez exchanged a series of 15 text messages. Ms Perez told Mr Monoah that his cousin Ms Maker had been kidnapped and that the victim was responsible due to a drug debt.

19Mr Monoah then showed these texts to his co-accused, Ms Akec, Ms Kuer and you.

20It was this belief, the Prosecution contends, that motivated all that was to follow.

21During the evening of 16 March, the victim was socialising with a group of approximately fifteen people in the Harmsworth Street Reserve, in and around a gazebo. This group included at times you and Ms Kuer.

22At 11:13pm on the 16 March, the victim travelled by elevator to Level 8. She was followed to Level 8 by you and Ms Akec. The two of you told the victim you needed to talk to her about something. Together, the three of you entered an apartment. Mr Monoah and Ms Kuer were already there.

23You, Mr Monoah and Ms Akec began to ‘interrogate’ the victim about the whereabouts of Ms Maker, seeking to find out what had happened to her.

24The victim explained that she had last seen Ms Maker a little after 1:00am on 16 March. The four of you clearly did not believe her and forced her into a bedroom where you, Ms Akec and Mr Monoah continued to ‘interrogate’ her. The three of you punched and kicked her to the head and body and ripped off a headscarf she was wearing.

25The victim pleaded with the three of 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.’

26You told Ms Kuer, ‘We just need [the victim] to tell the truth.’ 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.

27Ms Kuer demanded that the victim take them to ‘…the houses [she] last took [Ms Maker].’

28At 11:53pm, CCTV captured Mr Monoah and Ms Kuer leading the victim into the elevator on Level 8 with you and Ms Akec following. The victim was already holding her abdomen and her face was swollen around the eyes and there was blood on her lip. In the elevator, you laughed and held an open palm to the victim’s stomach.

29The 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. Mr Monoah called Ms Perez’s phone but it was not answered.

30At midnight, the four of you led the victim into the elevator and travelled to the ground floor. At one stage, Mr Monoah placed his arm outwards to stop the victim leaving the elevator.

31You and Mr Monoah led the way from 229 Hoddle Street to the apartments at 253 Hoddle Street. Ms Akec and Ms Kuer were behind the victim compelling her to follow. They went to Troy Marsh’s apartment in search of Ms Maker. The door was not answered despite it being kicked several times. You, Ms Akec and Ms Kuer continued hitting and kicking the victim, who was still trying to convince the four of you that she knew nothing about the whereabouts of Ms Maker.

32The four of you became more aggressive, hitting the victim to the face and stomach. Ms Akec grabbed her around the throat and gouged at her eyes to such an extent that the victim told you all she was ‘blind’.

33At 12:10am, CCTV captured Ms Akec pushing the victim into the elevator, causing her to fall to the floor in the presence of you, Mr Monoah and Ms Kuer.

34At this point the CCTV captured 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. Ms Akec at this point took the victim’s arm and compelled her to follow the rest of you.

35It was at this point that the victim asked for help and told you and your co-accused she felt ‘a bit funny’.

36You and Ms Akec continued to punch her. While exiting the foyer of 253 Hoddle Street, Ms Akec is seen on CCTV holding the victim on her right side and pushing her forcefully forward with you, Mr Monoah and Ms Kuer following.

37As a group, you walked to Dight Street in 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.

38Your group was seen by a number of people. One of those people, a Mr Abiel, talked to your group. The victim broke away from her attackers and pleaded with Mr Abiel for help. Notwithstanding Mr Abiel saying ‘enough, enough’, 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 Ms Akec away. Eventually, however, he placed the victim on the ground close to the gazebo in Harmsworth Reserve where your group had walked.

39At 12:36am, Ms Akec picked the victim up from the ground and walked her to the gazebo where she sat her on a seat. She continued to assault the victim to the head and body. She pulled the victim to the concrete surface of the gazebo. Mr Abiel attempted unsuccessfully to intervene. He then left the victim in the hands of your group after urging you again to stop, but you persisted in your ‘interrogation’ of the victim, claiming she was lying and that she was not telling you something.

40Ms Akec continued her assault of the victim’s head by kicking and stomping. At 12:50am, 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 and your two female co-accused dragged the inert victim onto the grass and left her lying there motionless.

41At 1:21am, the four of you dragged the victim to a unit in Vere Street in 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.

42You, Ms Akec and Ms Kuer continued to hit her. Mr Monoah kicked her forcefully to the head twice. The victim became unconscious. Blood was pooling from her head onto the floor.

43One or more of you pulled her clothing and underwear down to mid-thigh leaving her half naked. The victim was still unconscious. Thereafter, 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. It is not contended that Ms Akec took part in these acts.

44In 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.

45Police 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. Paramedics attended and took the victim by ambulance to Royal Melbourne Hospital for treatment. She was categorised as a time critical patient.

46On 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.

47Following admission and surgery the victim remained an in-patient at Royal Melbourne Hospital for 21 days, until 7 April 2021.

48The 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;

(g)   a right hemicolectomy, a procedure involving the removal of the right side of the colon and the surgical attachment of 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;

(h)   tooth fractures, and

(i)    tooth avulsions (where the teeth had been torn away).

49The victim required on-going outpatient treatment for her abdominal injuries, teeth and mouth injuries, lip laceration and elbow injury.

50Following various enquiries, police attended at an apartment at the 229 Hoddle Street apartments at approximately 12:15pm on 17 March 2021. Inside the apartment, they located you and your three co-accused and two others. You and your co-accused were arrested.

Nature and gravity of the offending

51Causing 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.

52While 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.

53Mr Elwood who appeared on behalf of the Director of Public Prosecutions submitted that you played an active role in the assault and apart from Ms Kuer, who played a lesser role, it is not possible to distinguish your role from the other three co-offenders.

Personal circumstances

54You were born in 1995 and are currently 26 years of age. You were born in Sudan but relocated to Egypt around the age of six or seven. You came to Australia with your family when you were eight, gaining citizenship in 2007. Your family initially moved transiently between various states before settling in Melbourne in 2014.

55You are the third of six children. You have two older sisters and three younger brothers. You also had a younger sister who passed away as a child. Your parents separated in 2014 due to your father’s drinking problem. He hid his drinking from your family and you and your siblings did not know about it until the beginning of the separation. You describe your father as a provider of structure and boundaries, while your mother was more relaxed.

56Your father had worked as a surgeon in Sudan but worked factory and cleaning jobs in Egypt and here in Australia. Your mother was predominantly a homemaker. She experienced difficulties learning English and started working in a factory once the youngest of your siblings started school. Your relationship with your mother is strained. While at the time of the offending, there had been an intervention order in place where the protected person was your mother, that order has expired and it is your intention to live with your mother and your daughter upon your release.

57You have successfully completed year 12 and a diploma in marketing. You have worked in retail, in childcare with your mother and a period of time as an administrator in a training organisation.

58You are closest with your 23 year old brother, who resides at home, providing support to your mother and siblings. You have an 18 year old brother who is in hospital with mental health concerns after experiencing drug-induced psychosis. You have no direct contact with him but receive updates on his condition from your other brother. You have no contact with your youngest brother.

59You commenced a serious relationship in 2017. That same year, you left the family home and moved in with your now ex-partner, who was incarcerated for 21 months after you met. While he was in custody, you were sexually assaulted, and your ex-partner took this as you being unfaithful to him. He exerted physical violence towards you as a result. On one occasion, you sustained a head injury as a result of him hitting you. The relationship eventually ended when he was again incarcerated. He still remains in custody. At the time you separated, you were unaware that you were four months pregnant with your daughter. When you discovered the pregnancy, you returned to living with your mother. After you gave birth, you spent six weeks living in a hotel because your mother caught COVID-19. When you returned home, the relationship with your mother deteriorated as you felt judged by her.

60Currently, your daughter is in the care of your mother and is supported by the Department of Families, Fairness and Housing. You see her twice weekly in custody and have regular video calls with her. You hope to regain custody of your daughter once you are out of prison and as noted, reside with your mother and daughter together.

61You report no development exposure to sexual abuse, child abuse or family violence when younger, but your parents’ separation had a profound impact on you. You began to rely on alcohol as an antidepressant whilst struggling to cope with the separation. This spiralled into regular drinking at age 21. You stopped drinking once you discovered you were pregnant, resuming sometime after your daughter’s birth. You tried to limit your drinking to social settings, not wanting to expose your daughter to substance use, but were drinking daily in the weeks leading up to the offending; alcohol and drugs were always in the house.

62In terms of other substances, you first smoked cannabis in 2017 after being introduced to the drug by your ex-partner. You began relying on cannabis for relaxation. Leading up to the offending, you were smoking several joints a day, consuming up to 28 grams fortnightly.

63You had tried methamphetamine on several occasions prior to the offending; in the week before the offending, you used methamphetamine on one occasion.

64You reported severe withdrawal symptoms from substances during your first week in custody, experiencing hot and cold sweats, vivid nightmares, aches, constipation, and constantly crying without realising it. You have previously attended Alcoholics Anonymous meetings, but have not been able to continue since being moved into a protection unit.

65You were assessed by Forensic Psychologist Pamela Matthews. In Ms Matthew’s report dated 5 September 2021, she notes your escalating substance use in the three to four weeks leading up to the offending and concludes you were experiencing a relapse of Poly Substance Use, meeting DSM-5 diagnostic criteria for mixed alcohol and cannabis use disorder and a diagnosis of Harmful Pattern of Use of a Psychoactive Substance – Methylamphetamine. Your persistent unsuccessful attempts to cut down or cease drug use resulted in a failure to fulfil major role obligations (such as parenting your daughter) and your continued use of substances resulted in recurrent social and interpersonal problems, including the breakdown of your relationship with your mother.

66Ms Matthews is also of the opinion that your association with a negative peer group and strained family relationships impacted upon your mood and substance misuse, noting that these factors are linked in a ‘dynamic interaction pattern’ that she believes can be directly associated with your offending. She concludes that without intervention that addresses these dynamic risk factors, you remain at a high risk of general and violent re-offending.

67Three months after you were remanded on this offending, you were placed in protective custody necessarily limiting your ability to engage in programs in prison. Nonetheless, where available, you have completed a number of short courses including parenting courses and certificates through the Box Hill Institute, preparing you for your responsibilities as a parent upon your release and providing you with employment opportunities.

Sentencing considerations

68Mr Lavery, who appeared on your behalf, highlighted a number of matters in mitigation.

69First is your plea of guilty. You, together with one of your co-offenders, Achol Kuer, conducted a contested committal where the victim was cross examined. The matter was listed for trial however came before me for a sentence indication hearing where you entered a plea of guilty. In the circumstances, despite running a contested committal, your plea of guilty still carries utilitarian value. While not entered at the earliest opportunity, the plea avoids the time and expense of a trial and demonstrates your acceptance of responsibility and willingness to facilitate the course of justice.

70The plea carries additional weight which must be reflected in a further amelioration in sentence, as it was 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].

71Turning to your prospects of rehabilitation, as noted by Ms Matthews, you require assistance in a number of areas, including housing, drug and alcohol treatment and parenting. Your insight is of some concern; Ms Matthews noting that your capacity to empathise with the victim is limited. Further, shortly after your remand, you were recorded on the telephone making disparaging remarks towards the victim, blaming her for your predicament. That said, you have now been in custody for some 20 months and it would seem that you have gained more insight. You are working with a number of agencies who are assisting you with housing and support to enable you to be safely reunited with your young child upon your release.

72You are relatively young and your prior criminal history, while relevant, is limited. Thus in my view rehabilitation must still feature prominently in the sentencing equation. In the circumstances in my view if you continue to engage with the supports you have utilised, your prospects of rehabilitation can be assed as very good.

73General 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, while relevant, in my view it need only carry limited weight in the circumstances given your limited prior criminal history and your good prospects of rehabilitation.

Sentence

74Ms Morwell, would you please stand.

75Nenawr Morwell, 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. On Summary Charge 8, commit an indictable offence whilst on bail, you are convicted and sentenced to 1 month imprisonment. Charge 2 and Summary Charge 8 will be wholly concurrent with the sentence imposed on Charge 1.

76I direct that you serve 2 years before becoming eligible for parole.

77Pursuant to s 18 of the Sentencing Act 1991 (‘Sentencing Act’), I declare that 635 days be reckoned as the period of imprisonment already served under the sentence I have imposed. That does not include today.

78Pursuant to s 6AAA of the Sentencing Act, I indicate that had you not pleaded guilty, I would have sentence you to a period of 5 years imprisonment with a non-parole period of 3 years and 6 months.