Director of Public Prosecutions v Nyoak
[2012] VCC 1064
•20 July 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-10-01974
| DIRECTOR OF PUBLIC PROSECUTIONS |
| V |
| CHAGAI NYOAK |
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JUDGE: | HER HONOUR JUDGE WILMOTH | |
WHERE HELD: | Melbourne | |
DATES OF HEARING: | Pre trial examination – 24, 25, 26 October 2010 | |
DATE OF SENTENCE: | 20 July 2012 | |
CASE MAY BE CITED AS: | DPP v. Nyoak | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1064 | |
REASONS FOR SENTENCE
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Catchwords: PG to recklessly causing serious injury x 1 and attempting to pervert the course of justice; Sudanese refugee with exceptionally traumatic personal background; official carer for sick mother, and only English speaker and driver within large extended family, some of whom also suffer from illness; whether exceptional circumstances; whether imprisonment would cause hardship to family members
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms E. Miller | |
| For the Accused | Mr R.H. Lawrence |
HER HONOUR:
1 Chagai Nyoak, you have pleaded guilty to one charge of recklessly causing serious injury to Gatwech Kuan and one charge of attempting to pervert the course of justice.
2 On 10 October 2009 you were both at a party in Springvale. Kuan got into the back seat of a car to be driven home by a friend. While he and another man were waiting for the driver you walked up to the car and opened the door where Kuan were seated. You were holding an empty bottle by its neck and swung it towards Kuan's head. You struck him on the right side of his head and continued to hit him until he became unconscious.
3 You left the bottle in the car and ran off leaving Kuan bleeding heavily. He was taken to hospital and treated for his injuries including severe swelling of the right orbit occluding the eye, an open laceration on each of the right cheek and lower lip, and fractures to his front teeth.
4 You were arrested on 11 October 2009 and made some admissions to the police when interviewed. You also said there had been an argument at the party and an altercation between you and Kuan. You said Kuan had hit you twice with the bottle and then you hit him with it, throwing it at him. You said this happened near the car, but different evidence was given by Mr Yut at the voir dire held last year before the trial was due to start.
5 Yut said that he did not see the fight but had earlier seen Kuan leave the garage where the party was being held and that you left the garage some five to seven minutes afterwards with your phone in your hand. He could not remember whether you had a bottle as well. He said earlier he had observed you to be angry at something Kuan had said to you and he, Mr Yut, told you to ignore it. Mr Yut said that while he was in the garage he was told about the fight and went outside where he saw Kuan beside a car bleeding. He did not see you anywhere.
6 Mr Yut also said in evidence that three or four months after the incident you asked him to make a statement to your lawyer to support him. This was before he was asked by the police to make a statement. He said you asked him to say that he had seen the fight and to say where it happened, but in fact he did not see it. He said he thought he was doing the right thing so he made the statement.
7 The explanation you have provided for this is that you understood that the victim and his mates had provided false statements to the police regarding the incident. It was Mr Yut's evidence that caused the trial to resolve by your decision to plead guilty to the two charges. It was therefore a late plea, but it has utilitarian value nonetheless because the need for the trial was avoided and that has been of assistance to the witnesses and to the criminal justice system overall. Accordingly you will have the benefit of a discount on your sentence.
8 What Kuan had said to you earlier was an offensive comment about your sister to the effect that he had had sex with her in Sudan. This was what provoked you to hit him with the bottle as you have agreed by pleading guilty to the prosecution summary. Apparently you felt obliged to defend her honour.
9 Your personal circumstances are very unusual, indeed exceptional insofar as local experience is concerned although, regrettably, they are perhaps less uncommon for people from your homeland, Southern Sudan. Officially your date of birth is 1983 but you believe it to be as late as 1986. Accordingly you are aged somewhere between 25 and 28 years.
10 Your father was a teacher who tragically was executed after your village was attacked and your mother, sister and brother escaped. You and your family had witnessed your father's execution following his torture.
11 You, at the age of about 10 were separated from the rest of your family and made a two-week trek without proper food to a refugee camp in Ethiopia after which you had no contact with your family for years. It was only later that you learned they had survived.
12 Whilst still in Southern Sudan you witnessed much civil conflict which was significantly traumatising.
13 At the camp you and the other refugees lived in tents and were helped by the United Nations with food and water and medical aid. Clothes were not provided and you had to fend for yourself earning money from collecting and selling firewood. You were obliged to undertake military training. You learnt English at the camp and later completed part of an advanced diploma in human resources.
14 In 2003, after some eight or nine years by my calculations, you had learned that your sister had survived and it was also in that year that a cousin in Australia offered to sponsor you to come here, so you left there in 2004.
15 Before coming here you met Mr Kuan in Addis Ababa and you lived together there. You assisted him in applying for a visa to come to Australia.
16 On arrival here in 2004 you went to Warrnambool where you immediately found work in an abattoir. You worked there for six months and then returned to Melbourne where you initiated the process for your sister to come here. You worked in factories and completed certificates in English in your first year in Melbourne and met your wife while studying. Your daughter was born around that time and she is now at school, doing well.
17 In 2008 your mother and much younger brother, now aged 13, came to Melbourne together with two young nephews who are in your mother's care. You left work to become her full-time carer as she suffers severely from leprosy and other illnesses. You receive a carer's pension and your family depends on this income.
18 You also sponsored the parents of one of your mother's nephews and they arrived here late last year. You estimate that you have helped sponsor 20 people to come here. You perform volunteer work for refugee organisations and you pay money each month for the support of four orphans in Ethiopia who would otherwise lack any support at all. The money you send pays for the rent of a house in Addis Ababa and the wage of a woman who looks after the school-aged children.
19 You now have another daughter and a son - he is now three and unfortunately suffers poor health at present with continuing, frequent admissions to hospital for treatment for respiratory problems and failure to gain weight.
20 You are studying for a bachelor's degree in sociology at Swinburne University and doing very well, having recently gained a high distinction in the subject Australian politics. You recently had to defer an examination in another subject because of your son's illness and at the time of writing these remarks you had a forthcoming supplementary exam to take.
21 As far as your own health is concerned you have been undergoing treatment for TB since 2009.
22 Your wife, who speaks English well, is studying to be a nurse. Many of the domestic responsibilities in your own home fall on your shoulders and as your mother's carer you drive her to medical appointments twice a week, interpret for her as she speaks no English, supervise her medication and prepare her meals each night.
23 You have only recently learned that your sister, who is a single mother, has been diagnosed with cancer. She has no driver's licence and relies on you for support. Your young brother suffers from a heart condition needing monthly injections and you take him to medical appointments. Twice a week you take him and your nephews to homework classes which you helped to establish and two days a week you attend university.
24 You are regarded as the head of this large, extended family. Clearly you play a very significant role in the local Sudanese community and in supporting the Nasir Community in the Sudan. A number of people have provided references to that effect and I have considered them in detail.
25 The Rev David Fotheringham, the minister of the Uniting Church to which you belong, described your assistance to the church and to your family and fellow Sudanese people as well as your journey to Southern Sudan to distribute donations from the church.
26 Mr Michael Donnelly, an elder of the same church, is familiar with your role and describes your commitment to the local community as well as your hopes to contribute to the building of a peaceful and independent nature in your homeland.
27 Mr Andrew Driscoll is a multicultural caseworker for an organisation providing support for people settling in Victoria. He advised that you have acted as a consultant for the Greater Dandenong Community Health Service in understanding conditions in Ethiopia. He considers the level of your responsibility to be far greater than other young men of your age in this country.
28 A senior social worker with the New Hope Foundation describe you, as others also do, as a capable, resourceful and responsible person who has acted as a valuable conduit of information between your community and his organisation. Your lecturer in sociology at Swinburne University has also spoken well of you.
29 Mr Dodeng Puoch, an elder of the Nasir Community and of the Presbyterian Church, has also written a letter in your support. He regards you as a fine, young man who suffered from trauma in Sudan as a child and asks for you to be given a chance. He notes that despite the odds you have educated yourself, worked hard and married and that you are committed to your family and the community.
30 Mr Jal Deng Wuol, the chairperson of the Nasir Community Association, states that both you and the victim are important contributors to the community. He fears that if you were imprisoned family breakdown both here and in the Sudan would follow.
31 You have been assessed by the psychologist Mr Cummins who stated in his initial report that you expressed your regret to him about the assault on Mr Kuan. He said you were very worried about the effect of possible imprisonment on your dependant family. He also noted that you have a limited understanding of the criminal justice system.
32 Although you have described the incident differently that led to these charges you accept that you went "overboard", to use your own words, and you deny any violent disposition. Despite the delay of at least several minutes before the attack on Mr Kuan it was in essence spontaneous with no prior planning.
33 In 2007 you were dealt with for a charge of assaulting your wife by kicking her in the thigh area. You were convicted and fined and placed on an adjourned undertaking to be of good behaviour and complete a number of conditions.
34 A combination of these matters has led Mr Cummins to the view that although you do not perceive that you have a problem with anger, a course in anger management would be advisable. Mr Cummins stated in that report that you were constrained in your comments about your past in the Sudan and therefore he was not able to diagnose post-traumatic stress disorder or an adjustment disorder, but he accepted it was most probably very likely that you suffer from one or both.
35 A further opinion was requested from Mr Cummins and he saw you again. You told him about an attack on your family by militants, who took you to a military base and placed all of you in a hole, covered over with tree branches where you remained overnight. In the morning you had freezing water poured over you and you then witnessed your father's torture and execution. After the receipt of this report and further submissions, the plea hearing was adjourned again to enable Mr Cummins to give evidence and be cross‑examined as to his diagnosis and other opinions.
36 His opinion is that you now suffer from a complex post-traumatic stress disorder and that therefore a term of imprisonment would likely impose a greater burden upon you than upon a person who did not suffer from that condition. He also considers that incarceration might precipitate difficulties for you in maintaining defence mechanisms which allow you to protect yourself psychologically from the traumas you have suffered.
37 Mr Cummins elaborated upon this by explaining that you adopt a very business-like approach to your extensive day to day activities such as caring for your mother and your immediate family, studying and helping in the wider community. He considers that all this is a way of consciously and unconsciously repressing the past.
38 He said that the complex post-traumatic stress disorder you suffer from is a major and significant mental health disorder and your general psychological functioning is compromised leaving you vulnerable to acute depression and anxiety arising from that disorder should you be imprisoned. In his experience counselling is not available in prison and even access to the resources for ongoing and further education is limited.
39 Mr Cummins also considers that your early exposure in the refugee camp, to the manipulation of information and the abuse of power may have played a part in you committing the offence of attempting to pervert the course of justice. Mr Cummins’ opinion therefore forms an important part of the background to this sentencing task.
40 Although you did not intend to injure Mr Kuan as you did, the injuries you inflicted were very serious. The photographs show severe, facial lacerations and swelling and in his victim impact statement Mr Kuan states he had a permanent scar on his lip, his front teeth were broken and he has had to have them replaced causing long term vulnerability. It effected him emotionally and reduced his concentration and he was unable to sit his final examinations at the end of that year. That has resulted in delaying his employment plans and his ability to support his family causing him a lot of distress.
41 You stated in your record of interview that you had not intended to injure Mr Kuan as you did and that you did so because you were upset. It does not amount to frank remorse, but I accept that you regret the outcome for Mr Kuan.
42 Perhaps you might learn from this experience that it is a very poor decision to resort to violence to defend a woman's honour, which was your explanation in this case. Women are capable of defending themselves and doubtless your sister would not have approved of your action had she known of it.
43 That being said I have taken into account your very extensive involvement in helping your community, as well as your personal commitment to your education as indicating excellent prospects for rehabilitation particularly when combined with your abstinence from alcohol.
44 I will ask you to stand now please, Mr Nyoak.
45 The maximum sentence for recklessly causing serious injury is 15 years imprisonment. Because of all the circumstances of this case I sentence you to imprisonment for two years and six months.
46 So seriously does the legislature regard the offence of attempting to pervert the course of justice that the maximum sentence is 25 years imprisonment. Although, of course, ignorance of the law is no excuse I place some weight on your limited understanding of the law given the different background you have experienced and so in my view 12 months imprisonment is appropriate and I sentence you accordingly. This sentence takes account of the need for general deterrence; that is that the court must strongly condemn such violence and others must be deterred from it.
47 Six months of the second sentence, the 12 months sentence, is to be served in cumulation upon the first sentence resulting in a total effective sentence of three years. For the reasons I am about to explain that sentence will be wholly suspended for three years. I would like you to listen carefully to these reasons, I am sure you will.
48 Hardship caused to family members by the imprisonment of the person upon whom they rely is not usually accepted as warranting the avoidance of immediate custody. This is such a case where there needs to be powerful mitigating factors before a sentence could be imposed that would enable you to remain in the community. That is because an assault using a glass bottle, severely injuring a person's face and mouth must be punished as conduct which is inherently dangerous and requiring a sentence consistent with that.
49 The need for specific deterrence is very much reduced in this case. You are unlikely to offend again, but because you have appeared in court before in relation to a charge of violence, although of a different degree, you should take part in some form of counselling in this regard. There is no doubt some disinhibition caused by alcohol on this occasion by your own admission, but you told Mr Cummins that you had given up drinking altogether since then.
50 The authorities are clear that family hardship is not of itself a mitigating factor unless it is of such a degree as to amount to exceptional circumstances. It has been held in the case of Markovic there is no residual discretion to exercise mercy on grounds of family hardship where the relevant circumstances are not shown to be exceptional. The court in the case of Gerrard held that family circumstances were truly exceptional in that case where it was not unlikely that incarceration of the respondent would lead to the disintegration of the family unit.
51 I have formed the conclusion that the relevant circumstances in this case are exceptional when considered in combination and that therefore family hardship alone would permit the suspension of the sentence, but in any event there are two aspects of the effects of imprisonment upon you that in my view warrant the total suspension of the prison sentence.
52 The first is the potential for your condition of complex post-traumatic stress disorder to place a severe burden upon you greater than that which another prisoner not suffering that condition might experience. The second is your knowledge of the hardship to your family caused by your incarceration is likely to place a similarly difficult burden upon you.
53 For these reasons, as I said, the sentence will be wholly suspended for three years. I must advise you that if during that time you were to commit another crime carrying a penalty of imprisonment you will have breached the suspended sentence and would have to return to court to be resentenced by me. You would then have to serve the sentence unless you could show there were further exceptional circumstances as to why you should not.
54 If you had pleaded not guilty to these charges I would have sentenced you to three years imprisonment with 30 months suspended for three years. In other words it would be the same sentence but you would have to serve six months of it.
55 The prosecution seeks an order for a forensic sample to be obtained under s.464ZF of the Crimes Act.
56 I have not heard from Mr Lawrence as to whether that is opposed or not.
57 MR LAWRENCE: I haven't got a note of it, Your Honour, but my recollection is that Mr Nyoak instructed that he would consent to it, but if I could confirm that, Your Honour.
58 HER HONOUR: Certainly.
59 MR LAWRENCE: By consent, Your Honour.
60 HER HONOUR: Thank you. I make that order and I must advise you that the police have the power to use reasonable force to obtain that sample, but I trust that will not be necessary.
61 A disposal order in respect to the bottle is also sought and I make that order. Is that by consent also, Mr Lawrence?
62 MR LAWRENCE: Yes, Your Honour.
63 HER HONOUR: Thank you. Now, have I omitted anything, Ms Miller?
64 MS MILLER: No, Your Honour.
65 HER HONOUR: Mr Lawrence, anything further?
66 MR LAWRENCE: No, Your Honour.
67 HER HONOUR: Thank you. I think the only other thing I need to add, Mr Lawrence, is that I did refer in my sentencing remarks to Mr Cummins’ opinion that anger management would be an advisable course for your client to undertake. I did not, of course, make any condition and perhaps the other remarks I made about your client would indicate that he is quite capable of undertaking that sort of thing voluntarily himself. Thank you. Thank you to counsel for their assistance during the quite long course of this plea.
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