Director of Public Prosecutions v Sari
[2023] VSC 523
•6 September 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2022 0311
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MAGERI SARI |
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JUDGE: | HOLLINGWORTH J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 25 August, 6 September 2023 |
DATE OF SENTENCE: | 6 September 2023 |
CASE MAY BE CITED AS: | DPP v Sari |
MEDIUM NEUTRAL CITATION: | [2023] VSC 523 |
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CRIMINAL LAW – Sentence – Intentionally causing injury – Kicking and punching as part of group offence – Young offender – Plea of guilty – Reasonable prospects of rehabilitation if appropriate counselling and treatment undertaken – Sentenced to 18 months’ imprisonment and 12 month community correction order.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr G Buchhorn | Ms A Hogan, Solicitor for Public Prosecutions |
| For Mr Sari | Ms S Lacy Ms E Allan | Doogue + George Defence Lawyers |
HER HONOUR:
You have pleaded guilty to intentionally causing injury to Kuol Riak on 13 March 2022.
On 12 March 2022, you attended an event at a venue in Docklands. You were with a group of your friends.
Kuol was also at the event with his two younger brothers, Alier and Ajak, and some of Alier’s friends. They were celebrating Alier’s 23rd birthday, and catching up before Alier moved to Darwin to play professional basketball.
Around 2:45am on 13 March, the event finished and everyone moved outside. As they were standing around, Kuol’s group was approached aggressively by another group; a short scuffle broke out between the two groups.
Wanting to get away from any trouble, Kuol and Alier’s group then walked to Bourke Street, where they had parked their car. Some people got in the car, and others stood next to it. They talked about getting something to eat and going to their hotels.
You and five friends also walked to Bourke Street. Your group approached Kuol and Alier’s group. You were the third person to reach them. Kuol recognised one of your group as a person who had questioned him aggressively outside the venue earlier.
Within seconds, someone in your group pulled a knife out of their bag and flipped it open. Kuol started to back away with his hands outstretched, but tripped over. Some members of your group started to punch and kick Kuol. You were not involved in this initial attack on Kuol.
Kuol managed to get to his feet, and ran down the street. By this time, you had caught up with your group and joined them in chasing Kuol. Kuol stumbled and fell again. Alier grabbed one of your co-offenders, to try to protect his brother, but you managed to reach Kuol. You punched and hit Kuol with striking motions, while he was on the ground.
Kuol managed to get to his feet again, and ran towards a park. You and one of your co-offenders caught him again at the entrance to the park. Kuol fell to the ground for a third time, where he was attacked again. He managed to get to his feet and run away. However, he returned to the park a few moments later, apparently looking for Alier, who had been attacked and stabbed by others in your group.
While Kuol was in the park, his shirt was torn from him. He was then pushed out of the park and onto the road. You kicked him while he was on the ground. Some people nearby intervened, and Kuol was helped by friends back onto Bourke Street. Police arrived shortly after.
You and some of your group stood nearby on Bourke Street, watching Alier being assisted by the police. Kuol noticed you standing there and approached you. Someone pulled him back. Then Kuol pointed you out to police. At that point your group walked away from the scene. Given his level of agitation, the police arrested Kuol and handcuffed him for a short time.
Kuol was treated by paramedics, before being taken to hospital by ambulance. He had four stab wounds to his back and arms, a laceration to the back of his arm, and abrasions to his knees, elbow and thumb tip.
Alier was also treated by paramedics, but died in the ambulance on the way to hospital.
Your group went to a house in Richmond, where you slept. Police attended the house around 8:15am that same morning, regarding an unrelated matter. Sometime between leaving the scene and the police attending the house, you had changed some of your clothing.
Over the next couple of weeks, the police called you on a number of occasions in relation to this offending, but you did not return their calls. Two weeks later, on 29 March 2022, you handed yourself in to police. You gave a “no comment” interview and were remanded in custody.
The above facts were not in dispute. However, the following two factual matters were disputed at the plea hearing.
The prosecution alleged that you had a knife in your left hand when you attacked Kuol, and were responsible for at least one of his stab wounds. The prosecution relied on a number of “glints” that can be seen in the CCTV footage of the incident, and in some screenshots taken from the CCTV footage.
I have carefully watched the CCTV footage of the incident, as well as examining the screenshots. Although the screenshots which the police rely upon do appear to depict a slightly elongated shiny object, no elongated object is visible on the moving footage. The apparent elongation seems to have been caused in the process of freezing what are fast-moving images.
The prosecution also relied on the fact that the glint remained reasonably level with the ground while you were running. But that does not prove that you were holding something shiny, it just shows the position your hand was in at the relevant times.
You are right-handed, so it would seem unlikely you would hold a weapon in your left hand. I also note that in some parts of the footage you can clearly be seen holding a baseball cap in your left hand and nothing in your right hand.
I am satisfied that the glints came from the large silver watch that you were wearing on your left wrist at the time of these events.
It follows that I am not satisfied beyond reasonable doubt that you had, or used, a knife in this offending. Given that finding, you are not being sentenced for causing any of the stab wounds or the laceration to Kuol.
The prosecution also asserted that you changed your clothing as you fled the scene, in an attempt to avoid police. There is no doubt that when the police arrived at the Richmond house later that same morning, you had removed your long sleeved top, and changed from tight jeans into tracksuit pants. It is not surprising that you had removed your outer top and changed into more comfortable pants to sleep. You were also wearing a baseball cap, which resembled the one you had been carrying at the time of the incident. The police arrived at the Richmond house unexpectedly, and in relation to another matter. In the circumstances, there is no basis for drawing a conclusion that you had changed your clothes in an attempt to avoid police.
I turn to consider the seriousness of your offending.
Your offending was in a public place, where there were many people around. You attacked Kuol as part of a group, and without any provocation. The incident must have been terrifying for Kuol, his friends and the other people who witnessed it.
You intentionally attacked Kuol when he was clearly trying to avoid confrontation and escape. You chased him repeatedly, and punched and kicked him after he had fallen to the ground and was in a vulnerable position. While the entire incident lasted around two minutes, the way you and your friends repeatedly pursued and attacked Kuol and his group makes this offending serious.
By the third assault, you must also have been aware that others in your group were carrying knives, and had stabbed Kuol. While I am not satisfied that you had a knife, you were part of a terrifying attack in which you knew others had such weapons.
Although you and some of your friends stood around after the attack on Kuol and Alier, you provided no assistance to them, despite their obvious injuries.
It is also an aggravating feature of this offending that, at the time, you were only two months into a 12 month community correction order (“CCO”) for robbery, assault in company and recklessly causing injury.
Before I consider your personal circumstances, I want to say something about the effect your actions have had on others.
Kuol Riak was 25 years old at the time of this offending. He was born in a refugee camp in Kenya, after his family fled the civil war in Sudan. He grew up with his parents and four siblings in Perth.
James Riak, Kuol’s father, provided a victim impact statement to the court on behalf of the whole family. James and his wife have brought their children up to be hard working, and they have all been very successful academically and at sport. Their parents are justifiably very proud of their achievements. This incident has caused family members to lose hope and motivation. They are struggling to understand why these events happened. Kuol and his siblings have lost confidence in going out to socialise. They no longer celebrate birthdays and other special occasions, because of what happened that night.
There is nothing this court can say or do that will heal the pain and grief caused by these events. Understandably, for Kuol and his family, at the forefront of their minds is that Alier tragically died in this incident at the hands of some of your friends. However, you were not involved in the attack on Alier and are not being punished for Alier’s death. You are only being punished for intentionally causing injury to Kuol by punching and kicking him.
I turn to consider your personal circumstances. You were born in October 2002 in Sudan.
You are the youngest of three boys. Your family fled Sudan when you were two years old, initially to a refugee camp in Egypt. You relocated to Australia when you were five. You lived in Sydney for a year, and then moved to Shepparton.
Your parents separated when you were seven, and you and your brothers were raised by your mother. You remain close to your mother and brothers, and they have continued to support you. You have not spoken to your father for many years.
When you were 16, you moved to the western suburbs of Melbourne to live with your aunt. You began to gravitate towards negative peers, and found living with your aunt difficult. You moved back to Shepparton later that year.
Most of your schooling was in Shepparton. You excelled at sport, but struggled academically. You got into fights with other students, and left school at the end of Year 9. You attended a flexible learning centre in Melbourne during 2019 and engaged well in their programs. For brief periods of time, you worked at KFC and at a factory in Shepparton.
You started smoking cannabis when you were about 14. You also started abusing benzodiazepines as a teenager, which you would at times combine with alcohol. You were intoxicated and drug-affected at the time of this offending, and substance abuse has been a relevant factor in your previous offending.
As already mentioned, you were on a CCO at the time of this offending, which was your first offending as an adult. You have numerous convictions in the Children’s Court for violent offending, starting when you were 16. Your offending has generally been carried out in the company of others. You have been placed on youth supervision orders, which you have breached on two occasions. This is the longest period that you have spent in custody.
Your age is a very important factor in sentencing you. You were 19 at the time of the offending, and are now 20. The law says that the youth of an offender should be a primary consideration for a sentencing court, where the matter properly arises. Youthful offenders are more prone to ill-considered or rash decisions, and often lack the degree of insight, judgement and self-control that adults have. The effect of imprisonment in an adult prison is more likely to damage, rather than improve, a youthful offender’s prospects of successful rehabilitation. In the case of a youthful offender, rehabilitation is usually more important than general deterrence; rehabilitation benefits the community as well as the offender.
However, these principles are not absolute. Due regard must be had in each case to other relevant matters, including the seriousness of the offending, and whether there has been any prior offending. Generally speaking, the more serious the offending, the less weight to be attached to youth. But the mitigatory effect of youth will only be extinguished in circumstances of the gravest offending, and where there is no realistic prospect of rehabilitation.
I turn to consider your prospects of rehabilitation.
For the purposes of sentencing, you were assessed by Dr Aaron Cunningham, psychologist. In his report dated 17 July 2023, Dr Cunningham states that you are a moderate risk of future violent offending. You have been taking an antidepressant in custody to help you sleep and cope with being in gaol, but depression played no role in your offending. You do not present with any mental illnesses. In Dr Cunningham’s opinion, association with an antisocial peer group was a main contributor to your offending. Your risk of reoffending would be reduced by finding stable employment, building a routine, socialising with pro-social peers, and addressing your drug and alcohol problems.
You started alcohol and drug treatment under the CCO that you were on at the time of this offending, but had only attended one counselling session before you were arrested for this offence. Most of your time in custody has been spent in Port Phillip Prison, where programs were not generally available to those on remand. You have recently changed prisons, and have now signed up for a drug and alcohol course. Both you and the community would benefit from you undertaking alcohol and drug treatment and counselling when released from prison.
You have also previously been assessed by Dr Matt Treeby, neuropsychologist, in relation to matters you had before the Children’s Court. In his report dated 25 February 2020, Dr Treeby assessed you as having some cognitive limitations. In his opinion, you are likely to experience greater day to day functional difficulties compared to others of your age. Dr Treeby also noted that your cognitive limitations mean you are easily led and taken advantage of by others. Dr Treeby identified that an issue for you was your association with negative peers. You have not addressed that issue since his report in early 2020.
You do have reasonable prospects of rehabilitation, if you are able to address your drug and alcohol issues, and engage in pro-social activities. You have been offered a job in the construction industry. You also have the support of O Street flexible learning centre, where you have previously been a student. You still enjoy the support of your mother and siblings.
You were initially charged with violent disorder and affray. You first offered to plead guilty to affray in November 2022, before your committal. However, you later withdrew that offer, and were committed to this court on the current charge. Your case was listed for trial in late August 2023, together with two of your co-offenders.[1] In June 2023, you offered to plead to the current charge.
[1]Two of your co-offenders are awaiting trial for the murder of Alier.
You are entitled to a discount on the sentence to be imposed upon you in recognition of your guilty plea, and its utilitarian value. Your plea has facilitated the course of justice. The community has, by your plea, been spared the time and cost of a trial.
During the early stages of the COVID-19 pandemic, the criminal justice system became severely congested, and jury trials were unable to proceed at all, or were delayed. In a case called Worboyes,[2] the Court of Appeal said that there were several reasons why a plea of guilty should be given additional weight during the pandemic, because it carried a greater utilitarian benefit than at other times.[3]
[2]Worboyes v The Queen [2021] VSCA 169.
[3]Worboyes, [35]-[39].
In fact, the Supreme Court has now cleared its pandemic backlog. Prison conditions have largely returned to their pre-COVID state. In such circumstances, it might seem strange, or even illogical, to allow a Worboyes discount in this particular case. However, the Court of Appeal has recently held that, for the sake of consistency, Worboyes discounts (even if modest) must continue to be given in all courts for so long as any of them are experiencing pandemic-related delays.[4]
[4]Biba v The Queen [2022] VSCA 168, [26].
Apart from any remorse that is inherent in your plea, there is little evidence that you accept responsibility for your actions. The regret you expressed to Dr Cunningham was limited to the effect your actions, and the media attention it attracted, has had on your family.
I accept that some of your time in custody has been made more difficult by the various restrictions that have been in place in custody during the COVID-19 pandemic. In particular, during your first few months of imprisonment, there were a series of extended lockdowns due to COVID-19.
Unfortunately, violent attacks by groups of youths has become all too common. The consequences that flow from such attacks can be profound, for those who are injured, their families and friends, and those who witness such incidents. There is a clear need for general deterrence, denunciation and punishment in respect of such offending.
On 7 February 2023, two of your co-offenders were sentenced in the County Court in relation to the events of that night.[5]
[5]Sentencing remarks of his Honour Judge Wischusen delivered on 7 February 2023 (unpublished).
(a) Emmanuel Lado was sentenced to 1 year and 9 months’ imprisonment, with a non-parole period of 1 year and 3 months, for the charge of affray. Mr Lado was 22 at the time of sentencing, and had a lengthy criminal history, including convictions for violence;
(b) Daniel Deng was sentenced to 1 year and 3 months’ imprisonment, followed by a 12 month CCO, for the charges of affray, failing to comply with a direction to assist, and committing an indictable offence on bail. Mr Deng was 23 at the time of sentencing, was suffering from post-traumatic stress disorder, and had less significant criminal convictions than Mr Lado.
Whilst affray is a less serious offence, and carries a lower maximum penalty, than intentionally causing injury,[6] I have had some regard to their sentences given that they were sentenced on an almost identical factual basis to your offending.
[6]The maximum penalty for intentionally causing injury is 10 years’ imprisonment. The maximum penalty for affray is 5 years’ imprisonment.
Given the role that substance abuse issues, immaturity, and a tendency to be easily led by others, have played in this and your earlier offending, you and the community would clearly benefit from you addressing these issues through treatment and supervision under a CCO. At the end of the plea hearing, I ordered that you be assessed for a CCO.
In a report dated 28 August 2023, you were assessed as suitable for a CCO. Recommended conditions include drug and alcohol treatment and rehabilitation, participation in programs to reduce reoffending, supervision, and non-association with any of your co-offenders. I agree with the proposed conditions, to which I am going to add judicial monitoring.
Balancing as best I am able the competing considerations laid down in the Sentencing Act 1991, and having regard to the matters I have just discussed, for the offence of causing injury intentionally, I sentence you to 18 months’ imprisonment and a 12 month community correction order.
Had you not pleaded guilty, I would have sentenced you to 2 years’ imprisonment.
I declare that the period to be reckoned as already served under this sentence is 526 days, not including today’s date. I direct that there be noted in the records of the court that fact that such a declaration was made and its details.
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