Director of Public Prosecutions v Wal
[2022] VSC 828
•21 September 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT GEELONG
CRIMINAL DIVISION
S ECR 2021 0176
S ECR 2021 0177
| THE DIRECTOR OF PUBLIC PROSECUTIONS | Crown |
| v | |
| ALITH WAL | Accused |
| and | |
| NYAL MAINYAL |
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JUDGE: | CHAMPION J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 29 March 2022; 4 July 2022 |
DATE OF JUDGMENT: | 21 September 2022 |
CASE MAY BE CITED AS: | DPP v Wal & Anor |
MEDIUM NEUTRAL CITATION: | [2022] VSC 828 |
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CRIMINAL LAW — Sentence — NM sentenced for affray, causing injury intentionally, commit indictable offence on bail — AW sentenced for affray, causing injury intentionally, possession of a drug of dependence, and commit indictable offence on bail — Victim deceased — AW and NM not criminally responsible for death — Relevance of victim impact statements — Pleas of guilty — Some remorse — Prior convictions for assault and violence offences — Youth (NM aged 20; AW aged 18) — Mental health considerations —COVID-19 restrictions — Pre-sentence detention — Limited prospects of rehabilitation – On causing injury intentionally, NM sentenced to nine months’ imprisonment; on affray, NM sentenced to 24 month CCO — On causing injury intentionally, AW sentenced to six months’ imprisonment; on affray and possessing drug of dependence, AW sentenced to 18 month CCO.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr R. Gibson KC with Ms N. Deltondo | Office of Public Prosecutions |
| For Accused Wal | Mr T. Trood | Ajak & Associates |
| For Accused Mainyal | Mr S. Ranjit | Papa Hughes Lawyers |
HIS HONOUR:
Introduction
Nyal Mainyal, on 3 February 2022, you pleaded guilty to the offences of affray and causing injury intentionally on 23 August 2020.
Alith Wal, on 3 February 2022, you pleaded guilty to the offences of affray, causing injury intentionally, and possession of a drug of dependence.
On 29 March 2022, you were both re-arraigned due to amendments required to be made to the indictment. You both re-entered pleas of guilty to all charges.
The maximum penalty for affray is five years’ imprisonment,[1] the maximum penalty for causing injury intentionally is ten years’ imprisonment,[2] and for possession of a drug of dependence the maximum penalty is 30 penalty units or one year imprisonment, or both.[3]
[1]Crimes Act 1958 (Vic) s 195H.
[2]Ibid, s 18.
[3]Drugs, Poisons and Controlled Substances Act 1981 (Vic) s 73.
Nyal Mainyal, you have also pleaded guilty to an offence of committing an indictable offence whilst on bail. The offending that occurred on 23 August 2020 took place in circumstances when you were on bail for charges of burglary and theft, for which you were due to appear in a Magistrate’s Court on 15 July 2021. The maximum penalty for this offence is 30 penalty units or three months’ imprisonment.
Circumstances of offending
Introduction
Your offending occurred on 23 August 2020 in Geelong. To begin with, you both participated in an affray. Towards the end of those events, you, Alith Wal, stabbed Mohammad Mohammidi in his armpit. You, Nyal Mainyal stabbed him in his left thigh. By then, Mohammed had already been fatally stabbed to the chest during the affray that took place, however it is not alleged that either of you are criminally responsible for that injury.
Your victim, Mohammad, was born on 28 August 2002, and was unknown to you. He was 17 years old when he died. A co-accused, WA, who was aged 16 years at the time of these events, was recently tried before a jury on the charge of murder, and acquitted.
After the affray, Mohammad was taken to hospital with life-threatening injuries. There he went into cardiac arrest. Two days later, on 25 August 2020, he was declared brain dead. On 29 August 2020, the day after his 18th birthday, Mohammad died from the wound to his chest.
Earlier on the evening of 23 August, and before the fatal stabbing, two groups of youths went to the Corio Village Shopping Centre. One group consisted of six males of Afghani descent. This group included the deceased, Mohammad. The other group also consisted of six males, but of African descent, and included the two of you. A pre-planned one-on-one fight was to occur between at least one male from each group. Things did not go to plan and a larger violent confrontation erupted between the two groups of males during which Mohammad was stabbed.
After the stabbing, you and the rest of your group ran from the scene. On the way back to a house in Rockley Close, Corio, you disposed of knives you had used by throwing them in a gutter and down a drain. The knives were later located by police.
Earlier the same day
Earlier that day, three of your group were drinking together at a house at Rockley Close, Corio. You both joined them between 3:00pm and 4:00pm. The initial plan was to have a night out drinking.
During the day, one of your group received a Snapchat message from one of the Afghani group who sought a one-on-one fight between a member of each group. Communications went back and forth on this issue for a number of hours. One of your group said he would participate to “get it over with”. He suggested that if there really was to be a fight, he should fight you, Mainyal. That person understood that if the other Afghani boys were to “jump in” and join the fight, then some of the African boys would jump in too.
At some point during the day, there was an agreement that the two groups would meet at the Corio Village Shopping Centre.
Shortly before 6:30pm, the deceased’s group met up together at the shopping centre and walked towards the nearby bus stop.
Meanwhile, your group had been preparing to leave Rockley Close. According to one member, there was a discussion about bringing knives to the fight. He thought the Afghani boys would bring knives and the African group did not want to come to the fight “unstrapped”. That person had a small pocket knife in his possession. On the walk to the location, it is alleged he gave the knife to you, Wal.
Shortly before 6:30pm, you and your group left the house at Rockley Close on foot. You walked though suburban streets and arrived at the rear car park of the shopping centre near the corner of Goulburn Avenue and Purnell Road at around 6:40pm.
At this time, one of Afghani group was squatting with Mohammad on Purnell Road, near the K-mart carpark talking about work and having a cigarette. He saw a group of approximately seven to eight African males approaching them and did not recognise them.
The two groups approached each other. One asked for a cigarette, and that request was refused.
There are differing accounts about what started the fight. The evidence, although slightly different as to how it started, shows that initially two persons assaulted each other. It appears that these actions commenced the fight between the two groups and began the affray (Charge 1 – Affray). You both participated in this group fight and so were active participants in the affray.
During the fight, Mohammad got between two persons fighting, and attempted to stop the fight. Mohammad was then stabbed in the chest. He put his hands to his chest where he had been stabbed, stepped back, and said in Dari “I have been stabbed with a weapon”. He then tried to walk towards the K-mart Tyre and Auto carpark but fell to the ground.
Meanwhile, the affray continued. Two of your group told the rest of the group that the other group had knives so the Afghani group retreated back towards the shopping centre. As they retreated they left the helpless, and mortally wounded, Mohammad behind, alone, on the ground. The African group followed the other group up the street.
Stabbing by Nyal Mainyal and Alith Wal
One youth noticed that Mohammad was holding himself up slightly by his forearms and was holding his stomach which was bleeding. That person kicked Mohammad as he was running past.
Then the two of you, together with another youth surrounded Mohammad. He was still on the ground.
Alith Wal, you were on the left side of Mohammad. You kicked him. You then knelt on one knee and used a knife held in your right hand to stab him in his stomach area (Charge 2 – Intentionally Causing Injury). The third person then kicked the deceased three or four times.
Nyal Mainyal, you stood in front of Mohammad. You pulled out a large knife from behind your back. The knife was faced downwards by your right side. It was a large knife with a slight curve. You lifted the knife and stabbed Mohammad in the thigh (Charge 2 – Intentionally Causing Injury).
Further away, it was realised by one of your group that Mohammad was by himself. One ran back towards Mohammad. He says he saw someone from the African group holding a knife. He says he ran at them telling them to stop it and not to do anything to Mohammad. He says he saw men from that group punch, kick, and stab Mohammad, who was on the ground.
The group of African boys came back towards Mohammad and his group ran off along Purnell Road.
During these events, two independent men, JK and CC were driving nearby and witnessed some of what took place. They saw five or six African males chasing a young male, trying to kick him. One of these two witnesses, JK, believed they had shopping trolley poles. He pulled over and yelled out at them. He followed the young male being chased towards the K-mart Tyre and Auto Centre carpark. He found Mohammad on the ground surrounded by the Afghani group.
A short time later, police arrived at the scene to find Mohammad conscious but bleeding heavily. While officers tried to provide assistance, he became non-responsive. He was taken to the Geelong Hospital.
CCTV on Cheshire Street, Corio, showed the group of African boys walking towards Rockley Close. The prosecution case is that the CCTV shows one of your group, and Mainyal holding knives. A resident of the street they were walking on, TM, heard them talking with one person bragging about how good the stabbing was. The group decided to get rid of the knives and put them in a gutter.
The group went to a house on Rockley Close. One of your group says at the house there was a discussion about the fight during which you, Mainyal, talked about having stabbed your victim in the thigh and you, Wal, also spoke about stabbing him.
There were various messages sent after the events, which included one of the other group saying he was coming after you, Mainyal, for using weapons and with you responding saying you had not even been there. Another of your group also messaged a friend and talked about having gotten ‘shanked’ in his elbow area, and Mohammad ‘copping it’ in the stomach and legs.
Factual issues in dispute
The prosecution alleges that two knives were brought to the scene by members of the African group, including a small pocket knife and a large kitchen knife. The defence for Mainyal submitted that the evidence does not support this proposition to the requisite standard. It is conceded however, that the small pocket knife was brought to the scene by this group, but argues there is insufficient evidence to show that members of this group carried the large kitchen knife to the scene.
On the available evidence, I cannot be satisfied beyond reasonable doubt that more than one knife was brought to the scene by a member of your group. While I am satisfied that more than one knife was used by the two of you, the evidence leaves open the possibility that the second knife was brought to the scene by a member of the Afghani group, and that one of you possibly acquired it in the melee that ensued.
Medical information
When the injured Mohammad arrived at Geelong Hospital he was critically unstable and went into cardiac arrest. He underwent an emergency thoracotomy and received multiple blood transfusions. He was taken for emergency surgery due to the lacerations to his heart.
The next day, 24 August 2020, a CT scan showed pressure in Mohammad’s head due to lack of oxygen. On 25 August 2020, he was declared brain dead. He died on 29 August 2020, by then aged 18.
A medical examination on 26 August 2020 by Dr Nicole Reid who detailed the injuries to Mohammad as being:
·One incised wound on the right chest, extending into the chest cavity and causing injury to the right lung, internal thoracic arteries, and heart. The injuries were life threatening and caused massive haemorrhaging, reduced ability to form clots, elevated blood acid levels, hypothermia, hypoxic brain injury and swelling of the brain. These injuries ultimately caused Mohammad’s brain death;
·Two incised wounds to the left armpit. These were the result of multiple applications of a sharp object. They wound were not serious but may have been capable of causing scarring;
·Two incised wounds to the left thigh. These were the result of multiple applications of a sharp object. They were also not serious but may have caused scarring;
·Friction abrasions to the nose, forehead, left cheek, left fingers, and both knees.
Dr Sarah Parsons, forensic pathologist, carried out an autopsy on 29 August 2020 and agreed that the cause of death was complications of a stab wound to the chest. She also noted an incision to the left armpit and an incision to the left hip.
Arrests of offenders
On 23 August 2020, sometime after the events, police arrested you Wal, at the North Shore train station. You were interviewed by police the following day, on 24 August 2020 and told police you were not familiar with anything in Geelong. Otherwise, you gave a “no comment” interview.
Mainyal, you were arrested at your home on 1 September 2020. You were interviewed by police and said that on the day of the events you were at home all day in quarantine, as you had been diagnosed with COVID-19 three weeks beforehand.
Police investigations
On 23 August 2020, police located a long black knife scabbard.
On 27 August 2020, a black handled kitchen knife, a large red and black handled fishing style knife, and a pair of scissors were found in a drain on Kinsley Drive, Corio.
The DNA results on the red and black fishing knife on which blood was located, was that it is 100 billion times more likely that Mohammad was the source.
The DNA results on the kitchen knife against the Australian Caucasian database found blood on the blade was 100 times more likely if Mohammad was the source.
Victim Impact Statements
I turn now to the victim impact statements placed before the Court.
Mohammad’s mother, Ayeh Khanoom Saadat, says that her son was a hardworking young man with a bright future. She spoke of him as a kind, generous and compassionate person, who had shown an interest in helping others from a young age. When he began working at the age of 16, she says that he allocated part of his income to people in need. Ms Saadat spoke of the challenges she had faced since immigrating to Australia, including the death of her husband, but spoke of the hope that she had found in dedicating her life to her children. She describes experiencing immense pain and shock when, as she was preparing for her son’s eighteenth birthday party, she received the news that he had been stabbed. She says that even in the years that have passed since the loss of her son, she feels that her grief and pain have only increased further, and she believes that no one, and nothing, can help her with this pain. She continues to suffer from acute depression, diabetes, hypertension and chronic nerve pain. She says that what happened to her son deprived her of the opportunity for life, and that she will live the rest of her life with a hole in her heart.
The Court received further Victim Impact Statements from Mohammad’s sisters, Mahvash Mohammadi, Saghar Mohammadi and Saghi Mohammadi.
Saghi Mohammadi described her brother as a kind-hearted, caring and motivated young man. She said that her brother reminded her of her late father in his caring and protective nature. She described the trauma of seeing her brother lying injured in a hospital bed and said that this is something she will carry with her for the rest of her life. She said that her brother’s death has left her with enduring feelings of hopelessness and depression, and caused irreparable damage to her family.
Saghar Mohammadi also said that her brother reminded her of her late father. She spoke of her brother’s battle with depression in the years preceding his death. She said that her brother’s death has left her feeling robbed of the opportunity to help him overcome his mental health struggles, and to see him happy and healthy again. She said that her brother’s life was taken from him cruelly and unjustly, and that she will live with the trauma of this for the rest of her life. Saghar Mohammadi also provided a victim impact statement on behalf of her sister Paravash Mohammadi who resides overseas. I have taken this into account as well.
Mahvash Mohammadi described her brother as a person who loved helping others and who made her feel important and safe. She said that she has experienced difficulty sleeping since these tragic events took place, and described how her ongoing feelings of anxiety, grief and depression have impacted her ability to work, socialise and take part in activities that she previously enjoyed. She said that she has had difficulty accepting her brother’s death and feels that she has been forced to live in a state of continuous loss.
A strongly felt theme throughout these statements was the sense of horror at the sudden loss of their loved one in such cruel and tragic circumstances. It is clear to me that the death of their son, and brother, and the manner in which his life was taken, have severely affected those who provided victim impact statements to the Court.
Having referred to the impact of the tragic death of Mohammad, it must be made clear that in the particular circumstances of this case, in which the both of you cannot be held responsible for the death of Mohammad, the law prevents me from taking into account how his death has impacted upon the victims in this case. Notwithstanding, for reasons I will return to below, his death can be considered in the limited sense of adding to the objective gravity of the affray charge. For the purposes of sentencing both of you, I am confined to an assessment of the impact of your crimes of affray and intentionally causing injury.
That said, it is clear to me that your crimes have deepened the grief and trauma that Mohammad’s loved ones have experienced since his death. Ms Saadat described her feelings of disbelief that her son had been ‘stabbed in a horrible coward act’. Mahvash Mohammadi said that she has thought constantly about the fear and pain that he would have experienced in his final moments, and that she has found it ‘hard to accept [her] brother’s death because of how he died’.
In considering victim impact, I have also taken into account the likely impact of your crimes on those who witnessed the offending, which involved people being exposed to a scene of significant violence and the use of weapons in a public place. It is reasonable to assume that it would have been a terrifying experience for those present near the scene.
I now turn to discuss your individual personal circumstances.
Personal circumstances – Nyal Mainyal
You were born on 17 April 2000, and at the time of your offending you were 20 years old. You are now 22 years old.
You were born in New South Wales and relocated to Victoria at the age of 14 as a result of the separation of your parents. Their separation and your subsequent relocation to Victoria are said to have had a significant impact on you as you were close to your father. Subsequent to relocating, you lost contact with him as he did not move to Victoria.
In Victoria, your family struggled financially and you had minimal support and supervision. From the age of 14 you began to make some significant and unfortunate life choices including that, you decided to discontinue your education within three months of commencing Year 8, and you moved out of your family home and relocated to Geelong to reside with your cousins and other associates. Although you no longer have contact with your father, you maintain regular contact with your mother and six other siblings who reside in Noble Park.
After moving to Geelong, you began using drugs including cannabis, GHB, Xanax and MDMA, as well as alcohol. Whilst in the community, you have had two hospitalisations for accidental overdoses. You have formed relationships with negative peer groups and turned to these groups for support and validation.
You have been sporadically employed. This includes two employment positions in your life, including 12 months as a roof tiler at the age of 17, and as a cleaner when you were 19. You are working in prison, mopping floors, and have recently enrolled in some education courses, including music, visual arts, and maths.
Your time on remand for these offences is the first time you have been in an adult prison setting. You have found it to be especially onerous given the conditions in custody during the COVID-19 pandemic. You have been subject to lockdowns and seclusion in quarantine. You have now spent 750 days in remand custody waiting for these proceedings to be finalised. As I will note below, you have experienced a further period of delay in having these proceedings than otherwise might have been expected. I have taken this added period of delay into account.
Criminal history
You have had regular interactions with the criminal justice system and have been before the Children’s Court of Victoria on a number of occasions from November 2016 onwards. Your criminal history encompasses relevant offending including numerous previous appearances for violence, including affray, recklessly causing injury, recklessly causing serious injury and possession of a prohibited weapon. You have various previous appearances relating to breaching youth supervision orders as a result of further acts of violence.
On 10 August 2018, you were convicted of two counts of affray, criminal damage, burglary, recklessly causing serious injury and theft. You were sentenced to nine months in a Youth Justice Centre. On appeal, on 10 October 2019, you were re-sentenced to a Youth Supervision order for a period of 12 months.
The present offending was committed whilst you were on bail for recklessly causing injury. Whilst at Malmsbury Youth Justice Centre on 1 April 2019 you punched a Youth Justice custodial worker to the face. You were charged on 12 April 2020 and bailed to 16 July 2020 but due to COVID-19, bail was extended in your absence to 19 February 2021. Your bail was revoked on 1 September 2020. This matter was finalised on 8 June 2021.
Notably, on 23 July 2019 at the Geelong Children’s Court, you were convicted of assault in company, recklessly causing injury, affray, recklessly causing serious injury and possession of a prohibited weapon without excuse. You were sentenced to aggregate detention in a Youth Justice Centre for a period of 13 months (PSD 163 days). You were released on 21 October 2019. These charges arose from events occurring in the Geelong CBD on 10 February 2019, resulting in injury to two persons. Further, by August 2020, you had committed the further offending now before this Court.
For a person of your young age, your previous criminal history is both deplorable and depressing. Your counsel submits that your past offending does not aggravate the objective gravity of this subject offending. Whilst I accept that submission, your prior history has relevance to the question of specific deterrence and protection of the community.
Personal circumstances – Alith Wal
You were born on 10 February 2002, and at the time of these offences you were 18 years old. You are now 20 years old.
You were born in South Sudan and fled that country with your family. When you were seven years old you came with your mother and two sisters to Australia, arriving in August 2009.
When you first came to Australia, you did not speak English and had to learn it as you were attending school. At primary school from Grade 3 onwards, you had supplementary l English classes. In 2020, you were completing Year 12 when you were arrested for this present offending.
The Court was provided with a report authored by psychologist Luke Armstrong (‘Mr Armstrong’). Mr Armstrong described your family background as both chaotic, and one of increasing disconnection with your family. In his opinion, this has led to your increasing drug use and association with a peer group that has not been a positive influence on your life.[4] Mr Armstrong opined that the background to your present offending as involving the interplay of the disconnection between you and your family, the increasing abuse of drugs, and your association with a peer group that became increasingly crime oriented.
[4]Armstrong Report Paragraph 2b, pages 2 and 3.
Criminal history
From the period of May 2018, you have appeared before the Children’s Court of Victoria on a number of occasions in relation to relevant offences including affray and unlawful assaults.
On 13 March 2019 at the Sunshine Children’s Court, you were sentenced without conviction to a youth supervision order for six months with a condition to engage in a violent offending prevention program. The sentence imposed was for offences of affray, theft and assault.
On 20 February 2020 you faced the Children’s Court again on charges of entering a private place without lawful excuse, intentionally damaging property, failing to answer bail, theft from shop and possession of cannabis. You were discharged without conviction upon entering accountable undertakings.
Submissions for the prosecution
Nature and gravity of the offending
In respect of you both, the prosecution submitted that the objective seriousness of the offences you have committed is to be informed by the following matters.
Premeditation
The prosecution argued the affray was premeditated. It is accepted that you did not initiate the arrangements for the confrontation between the two groups, however, it is submitted that you both attended the scene knowing that a fight was to occur between two people, and there was a high risk that it would escalate into a broader fight involving both groups. Further, there had been discussions about whether knives would be taken.
Use of weapons
The prosecution argued that the affray involved the premeditated understanding that knives would be present. The prosecution argues that the evidence points to both of you having prior knowledge that weapons were to be used in a broader fight, and consequently that you both foresaw the prospect of violence, with the possibility that the outcome could involve serious injury.
In particular, the prosecution argues against the submission made on behalf of you Wal, that you were unaware that others in your group carried weapons. In this regard, the prosecution points to evidence that on the walk to the location, one of the young men in your group gave a small pocket knife to you when you requested it. The prosecution argues you planned to use the knife in the commission of your offending.
Roles of the offenders
The prosecution submitted that both of you were willing and active participants in the affray and the events that followed. It is submitted that after Mohammad had been stabbed to the chest and was on the ground, neither of you retreated or intervened to stop the fight. Rather, it is said that you were pivotal players in the continuation of the affray, deliberately pursuing the Afghani group once they had retreated.
Further, it is pointed out that you both approached Mohammed and inflicted further injuries on him while he was alone, vulnerable and helpless. The prosecution accepts that there is insufficient evidence to show that either of you knew at the relevant time that the first stab wound was a fatal one. Nonetheless, the prosecution submits that this was upon any view a cowardly attack. There is evidence that there was blood on the deceased’s stomach when you stabbed him, and it would have been apparent that he was so incapacitated by his injuries as to be incapable of fleeing from the scene along with his associates.
Nature and seriousness of the injuries
The prosecution concedes that the injuries which you caused to the deceased to his left armpit and hip areas, were relatively minor. However, it was noted that the wounds you inflicted were in areas not far from vital structures in the body and it was perhaps fortuitous that the injuries were not more serious.
Nature and seriousness of the affray
With respect to the objective gravity of your offending, the prosecution emphasises that these events involved the most tragic and heartbreaking death of a young man with a bright future. Although you are not being sentenced on the basis that you are legally responsible for his death, the fact of a death resulting from the affray is a circumstance which can be taken into account in determining the seriousness of the offence.[5]
[5]R v Feretzanis [2003] VSCA 8 at [18]-[19]; DPP v Russell [2014] VSCA 308 at [42]-[44].
Prevalence of knife crime
The prosecution submitted that in light of the prevalence of knife crime in the Victorian community, general deterrence and denunciation must figure prominently in the sentencing synthesis.
The prosecution referred to several sets of statistics said to evidence the increasing prevalence of knife crime. Further, the prosecution pointed to the following remarks made by the Court of Appeal in the case of Director of Public Prosecutions v Russell:[6]
Random street violence is a scourge on our society. Typically, the violence is brief and unpremeditated but it has profound and enduring consequences. Innocent people are killed or seriously injured; their families are devastated; their communities disrupted. And the outburst of violence is ruinous for the offender, too. Imprisonment with all its destructive consequences is virtually inevitable, as is the same and embarrassment felt by the offender’s family.
[6][2014] VSCA 308 at [4].
Sentencing outcome
The prosecution proposed several options for sentencing outcomes in your cases. It was submitted that a sentence of imprisonment could be imposed taking into account the period of pre-sentence detention, and in imposing a non-parole period the lengthy period of PSD would be taken into account, with a prospect of parole hanging over your heads, the breach of which would likely mean a return into custody. The other option is to impose a sentence of imprisonment under 12 months with the addition of a community corrections order.
In respect of you both, the prosecution argues that the imposition of non-custodial sentences by the Court is not open.
Submissions for Nyal Mainyal
Nature and gravity of the offending
It is conceded that your offending is serious in nature. It is not disputed that your victim was defenceless and alone when you stabbed him. It is accepted that the injury you inflicted upon him was two centimetres under the skin and the length between the entry and the exit was 7.5 centimetres. The devastating consequences of your actions and the tragic impact upon the deceased’s family are matters which cannot be denied.
Your counsel further conceded that your offending is made more serious by the use of a weapon in a public space, although it is noted that these events occurred after dark, when there were fewer bystanders in the vicinity than may have been expected in broad daylight at a busy shopping centre.
In your defence, it was submitted there are several matters that should be taken into account in assessing the overall seriousness of the affray charge. First, the affray was relatively short lived. Further, the prosecution case is that the affray was not initiated by you but rather two other males in your group. In addition, it is understood that you did not personally bring a weapon with you to the fight, but rather that it was obtained at the scene during the fight.
With respect to the seriousness of the charges of intentionally causing injury, it is accepted that you inflicted injury to a defenceless man who was already suffering from a very serious stab injury. However, it is also noted that there is no evidence to suggest that you knew at the relevant time the extent of his injury, or indeed that it would prove fatal, or was life threatening.
Further, it is noted that this is not a case where the evidence shows that you brought the knife to the fight with the premeditated intention to stab the deceased. Rather, it is submitted that you obtained the knife opportunistically during the course of the affray.
A further matter advanced in mitigation of the seriousness of your offending is that according to the medical evidence, the injury which you inflicted was not serious in nature.
Your explanation for your offending conduct is that you were intoxicated at the time and under the influence of Xanax, which impacted your ability to think clearly and rationally. It is said that you were going along with what your friends were doing, and that as the fight escalated you were swept up in the momentum of the fight. You said that you were attempting to stop a fight between your associate and two other males, and in turn, you yourself became involved in the fight. Your defence accepts that this is an explanation which I may find unsatisfactory, and no justification or proper excuse has been advanced on your behalf.
Your counsel referred to the case of Casley,[7] which involved an offender who was a participant in a street affray, and which also resulted in the death of a young man. Casley, who was not involved in the fatal stabbing by another offender, was ultimately sentenced to eight months’ imprisonment as well as an eight month community corrections order [‘CCO’].
[7]R v Casley [2021] VSC 503.
Ultimately, it was submitted on your behalf that you are not being sentenced on the basis that you are criminally responsible for the death of Mohammad, however, it was accepted that the fact of the death resulting from the affray can be taken into account in sentencing.
Guilty plea, age and remorse
It is noted that you were 20 years old at the time of your offending and have pleaded guilty to the offences charged at the earliest opportunity. Your counsel submitted that you are a youthful offender and that that the principles as set out in the cases of Azzopardi[8] and Mills[9] should apply even in circumstance where, as here, the offending was serious.
[8]Azzopardi v The Queen [2011] VSCA 372.
[9]R v Mills [1998] 4 VR 235.
Although a committal hearing was conducted, your counsel submitted that there was a forensic benefit to the committal proceedings, which is evident from the ultimate resolution of these matters. It was submitted that there is significant utilitarian value in entering a guilty plea in the context of the COVID-19 pandemic.[10]
[10]Worboyes v The Queen [2021] VSCA 169, [39].
Your counsel submitted that you are remorseful for your actions, and that you recognise the impact that your actions have had on Mohammad’s family. You have told your counsel that you understand you need to change your behaviour and that if released from custody you intend to gain employment and move back to Noble Park to remove yourself from association with negative peer groups in Geelong. It is submitted that your criminal history suggests a strong nexus between your offending and your associations in Geelong. It is noted that if released from prison, you intend to reside with your family in Noble Park, limiting your association with negative peer groups based in Geelong.
Protection of the community
Your Counsel accepts that you have a record of similar past offending. It is therefore recognised that an important consideration for the sentencing court is protection of the community and the risk of reoffending.
Sentencing outcome
It was submitted on your behalf that you should be sentenced to a CCO. It was submitted that a CCO could appropriately address the sentencing outcomes of specific deterrence and rehabilitation, emphasising that it would subject you to onerous and punitive conditions. The Court was referred to a number of authorities for the proposition that a CCO should not be regarded as a ‘get out of gaol free card’, and is a significant punishment capable of substantial deterrent effect, both specific and general.[11]
[11]DPP v Edwards [2012] VSCA 293 at [242]; Boulton v The Queen [2014] VSCA 342; 46 VR 308.
Further, it was submitted that a CCO could be appropriately conditioned to restrict you from entering Geelong, thereby limiting your association with the peer groups involved in your offending.
It was submitted that having regard to your age and your motivation to change your behaviour, there is an opportunity to rehabilitate you with an appropriately conditioned CCO. It was said that your rehabilitation as a youthful offender not only benefits you, but also better serves the interests of the community where programs can be deployed to reduce your risk of reoffending.
Submissions for Alith Wal
Nature and gravity of the offending
It was conceded on your behalf that your offending was serious in nature. Nonetheless, the following matters were advanced in order to put the offending in a more complete context. The matters included:
(a)that the affray was relatively short in duration;
(b)that in the context of this case, you are not to be sentenced on the basis that you were responsible for the death of Mohammad (however, it was accepted that the fact of his death is relevant to an assessment of the gravity of the affray);[12]
(c)that what was planned was a ‘one-on-one’ fight between others, and you should be sentenced on the basis that you were reckless as to the threat of violence by your conduct in accompanying the others and being close to them when contact was made between the two groups;
(d)that you played no part in the making of these arrangements;
(e)that you were not involved in the commencement of the fight between the two groups;
(f)that there is an absence of evidence to show that you were aware that any of the others in your group carried weapons, and as described by one of your group, the ambit of what was planned was ‘there was going to be a one on one and then we leave’.
[12]See R v Feretzanis 2003 VSCA 8, [18].
With respect to causing injury intentionally, your counsel raised a number of matters in mitigation of your offending, including:
(a)That there is an absence of evidence to suggest that you were aware that Mohammad had been stabbed or badly injured at the time of these events. In this regard, your Counsel points to the evidence of two witnesses, DG and BK
,who attempted to render assistance to your victim. Both witnesses stated that it was not until they unzipped his jacket that they were able to observe the extent of the injury to his chest. Therefore, it is submitted that it may not have been readily apparent to you that Mohammad had been incapacitated or gravely injured at the time when you stabbed him.(b)Furthermore, as to the injuries inflicted by you to Mohammad’s left armpit area, neither required suturing and are best described as shallow incised wounds.
(c)In totality therefore, the wounds inflicted by knives and other force were deemed not serious and would have healed with no long term physical consequences.
Possession of MDMA
As to the possession of the drug MDMA, it was submitted on your behalf that you ought to be sentenced on the basis that you possessed a very small quantity of this drug for your personal use. The Drugs Poisons and Controlled Substances Act 1981 specifies the quantity of 0.75 grams of MDMA as a small quantity.[13] It was noted that you were in possession of 0.1 grams of a mixed substance. It was submitted that the operation of s 76(1)(ab) Drugs, Poisons and Controlled Substances Act is enlivened in these circumstances.
[13]See Schedule 11, Part 3, Column 1, MDMA & Column 4, Drugs, Poisons and Controlled Substances Act 1981.
Guilty plea and remorse
It is submitted that given the procedural history of this case, your plea of guilty should be regarded as an early plea of guilty.
It was submitted that the entry of an early guilty plea in the context of the COVID-19 pandemic attracts the additional weight and amelioration of sentence that has been set out by the Victorian Court of Appeal.[14]
[14]See Worboyes v The Queen [2021] VSCA 169, [35]-[39]; Chenhall v The Queen [2021] VSCA 175, [33]-[35].
Consistent with your plea of guilty, the observations of the psychologist Mr Armstrong indicate that you have expressed genuine remorse for your actions, and that this is an important step in your rehabilitation.[15]
[15]Psychological Report of Luke Armstrong dated 23/3/2022, at paragraph 5b., p8.
Onerous conditions in custody
You have been in custody on remand since your arrest on 23 August 2020.
As at the date of your first plea hearing on 29 March 2022, you had been subject to 155 emergency management days designed to limit the spread of COVID-19, where you have been effectively confined to your cell block. It was submitted that this is a very onerous situation, particularly for a young person.
As a result of the pandemic, you have had limited access to physical visits from family members. As at 29 March 2022, you had received only two in-person visits over your 583 days in custody.
Mr Armstrong’s opinion is that the extended period you have spent in custody has resulted in you reflecting on your involvement in this matter, your own actions, and on the death of Mohammad, in a way which demonstrates empathy for his family.[16]
[16]Ibid.
Mental health considerations
Although no Verdins[17] considerations have been raised in your case,[18] the report of Mr Armstrong finds that you are suffering from an underlying depressive-like condition.[19] In these circumstances Mr Armstrong opined that with this depressive condition there is a risk that your mental health will deteriorate in the absence of specialist treatment and direct support from family.
[17]Verdins v R [2007] VSCA 102.
[18]Ibid.
[19]See Armstrong Report, paragraph 5 a., p8.
Mr Armstrong suggests you are a good candidate for rehabilitation. He notes some issues with alcohol and drug use, however, he does not attribute your offending in a causative sense to alcohol and drug use.
Relying on the report of Mr Armstrong your Counsel submitted that your criminal history should be seen against the maturation that has occurred and your subsequent recognition of the link between associating with a negative peer group, and your recognition of the need to abstain from using illegal drugs.
Visa status
You hold a permanent resident visa in Australia. Under s 501 of the Migration Act 1958 (Cth) the Minister must cancel your visa if you are sentenced to a term of imprisonment of 12 months or more.[20] Should your visa be cancelled pursuant to the mandatory provisions of this Act, you face a real chance of deportation.
[20]Migration Act 1958 (Cth) ss 501(3A)(a)(i); 501(7)(c).
You have lived in Australia since coming with your mother and two sisters in 2009, aged seven years. Your immediate family resides in Victoria, although you have some extended family in South Sudan.
Your counsel submitted that the prospect of deportation would be considered a form of extra-curial punishment, and is a relevant factor to be considered in mitigation, citing the case of Hague v R[21] as authority for that proposition.
[21][2022] VSCA 17.
It was submitted that pre-sentence detention is not considered a term of imprisonment for the purposes of the relevant sections of the Migration Act.[22] Having considered this aspect of your circumstances, I have taken the view that I do not need to decide this matter.
[22]See, e.g. Cooke v The Queen [2021] VSCA 70.
Totality
Your counsel submitted that although Charges 1 and 2 are separate offences and attract a sentence of imprisonment, in the circumstances, they should be considered as part of the one incident, and that accordingly, a degree of concurrency should follow.
Sentencing outcome
Ultimately, it is submitted on your behalf that the combination of the above matters permits the imposition of a sentence of imprisonment of less than 12 months’ duration, along with the imposition of a suitably crafted CCO with appropriate conditions. Such a sentence, it was submitted, would satisfy the need for punishment, general deterrence, specific deterrence, denunciation, and rehabilitation. Furthermore, it was noted that a CCO is a particularly important sentencing option in the case of a young offender such as you.
Your counsel argued that the Court should not regard the imposition of a CCO as insufficiently punitive with regard to the serious nature of your offending, submitting that the time you have spent in custody on remand satisfies the purpose of punishment. Furthermore, in reference to the case of Boulton v The Queen,[23] it was submitted that a CCO has been regarded as an appropriate disposition in certain cases of serious offending.[24] It was submitted on your behalf that a CCO could contain punitive conditions such as unpaid community work.
[23](2014) VR 308.
[24]Ibid, [24].
Further, it was submitted that a CCO is desirable in your case given your young age and that therefore, ‘treatment and rehabilitation conditions are [will be] imposed for the protection of the community as well as for the benefit of the offender’.[25]
[25]Ibid, [47].
It was proposed that should you be released on a CCO, you will reside with your mother and siblings at home.
Analysis and conclusions
Nature and gravity of the offending
You both engaged in a public display of street gang violence that involved more than ten young persons. The violence escalated into tragic circumstances. The affray was dangerous and risky in that some participants came armed with bladed weapons, a fact of which I am satisfied that you were both at least aware of before the events took place. Due to knives being present it was clearly foreseeable that they may be used, and indeed they were.
The affray was a display of violence in a public setting that doubtless frightened those nearby. It was violence that became uncontrolled.
The knives present during the affray found themselves into your hands, and both of you used them to intentionally inflict injury on Mohammad. On the evidence before me, I am not able to accurately conclude how they came to be in your possession. Further, I am not able to conclude that you both had the intention of using knives before the affray began. However, having at some point during the affray come into possession of the knives, you decided to use them. The use of bladed weapons when assaulting Mohammad in each other’s company leads me to conclude that in all the circumstances, the assaults with the knives, which caused injury, should be regarded as serious.
You both stabbed a young man who was on the ground and defenceless. I am not satisfied that either of you knew he was mortally wounded and dying, but you were both aware that he was on the ground and alone when you and another person surrounded him. Mohammad must have been frightened. You both then proceeded to act in a cowardly and completely unnecessary way through your conduct. Mohammad was clearly no threat to you, and he was unarmed. Your actions must be condemned as wanton, cruel behaviour and served little purpose. Your violence towards Mohammad was gratuitous and spiteful. Your actions must have added significantly to his trauma and misery in circumstances where he had been abandoned by his so-called friends, and was alone, and at your mercy. You showed no mercy and you then attacked him with your feet, and then knives. In my opinion, the level of violence and the gratuitous nature of it, was abhorrent and offends basic human decency.
The injuries which you caused to Mohammad, that is the injuries to his left armpit and to the hip area, were relatively minor. That said it must be reaffirmed that an attack that involves the deliberate cutting or penetration of another person’s body by a sharp implement such as a knife, is a very serious action, and more so in circumstances where the victim was an entirely defenceless young man. Your cowardly and wanton attacks must be publicly denounced as completely unacceptable conduct.
Moral culpability
As to your respective levels of culpability for these offences, you both deliberately engaged in the affray that evolved in circumstances where you could have pulled out and walked away. I am satisfied that you were both willing participants of this conduct, albeit participants for a relatively brief period of time, as part of two groups of young men that became intent on fighting with each other. I am satisfied that you both became part of a group mentality that all too often involves young men prepared to engage in group violence for some perceived slight, or dominance of one group over the other. I am unable to say exactly what the motivation was on the part of both groups in relation to this incident.
You both took the group violence to another level when together you acted to attack your vulnerable victim when he was on the ground, and unable to defend himself. In light of all the circumstances, I am satisfied that you both must be regarded as being very culpable for the affray, and your attacks on Mohammad. At the same time, I accept that you are both likely to have acted on the spur of the moment and in the heat of the moment, rather than carefully considering the consequences of your actions. Furthermore, the wounds that you inflicted were not life threatening and fell at the lower end of actual seriousness. Notwithstanding, the way in which you both offended against Mohammad heightened your moral culpability and the degree of revulsion felt by right thinking people.
Having considered the submission of the prosecution directed towards the argued increased prevalence of knife crime and on the basis of the limited material placed before the Court, I am not prepared to conclude for the purposes of assessing the appropriate sentences to be imposed, that there is an increasing prevalence of knife crime in the Victorian community. I do, however, accept and endorse the above statements of the Victorian Court of Appeal in DPP v Russell.[26] The present case falls into a category of offending that must be regarded as a scourge on the lives of directly affected people, and accordingly, is of a nature that must be regarded very seriously. As stated, sentences of imprisonment for this type of crime are generally unavoidable.
[26](2014) 44 VR 471.
Mitigating factors
I acknowledge and take into account that you have both pleaded guilty to the offences now before the Court. These pleas have utilitarian value in that they have saved the time and resources of the community and this Court. The pleas have also facilitated a situation where witnesses who would have otherwise been required to be available to give evidence about these distressing events have not been called. Furthermore, you have saved the family and friends of Mohammad from having to suffer the ordeal of a trial.
The above noted, as to the question of remorse, bearing in mind the reports I am about to discuss, I have some significant reservations about whether you are both remorseful for what you have done. However, I also acknowledge that you are both young, immature and have thus far led troubled lives. Both of you have now spent a considerable period in remand custody in an adult custodial setting. Doubtless, this would have been difficult for you both, especially as much of the period has been spent in circumstances where the COVID-19 pandemic has affected the way you have experienced that period of time.
Pre-sentence reports
At the conclusion of the first day of the plea hearings in these matters, I ordered that pre-sentence reports be provided to the Court. As a result, you have now both been assessed by Community Correctional Services (CCS) by way of an Extended Pre-Sentence Assessment to determine your suitability for CCO’s.
Individual Considerations
A number of the remarks I have made so far apply to you both. I now note some considerations that apply to you individually.
Nyal Mainyal
Nyal Mainyal, you are now 22 years old. As explained, you have had a difficult upbringing and have had some significant engagements with the criminal justice system. You left school early, and generally have led a chaotic and un-structured life.
The report authored by Geelong Community Correctional Services has assessed you as a high risk of ‘general re-offending’, based on your attitudes to the current offences before the Court, your lack of employment history, your prior criminal history and your adherence to an offending peer group. The assessment represents a far from glowing reference. The report notes your offending behaviours have escalated in the years leading up to this offending, and that you appear to show limited insight into your offending behaviour and the causes for it. The author of your report speaks in quite guarded terms about your prospects of rehabilitation.
Ultimately, however, you have been assessed as suitable for a CCO, with a series of conditions directed towards the development of pro-social attitudes. You have indicated your understanding of potential CCO order conditions and requirements should you be placed on such an Order. You have had explained, and understand, the consequences should you fail to comply with an Order and that a further term of imprisonment could be imposed upon re-sentencing. In those circumstances, you have consented to the making of the order.
Alith Wal
You are now 20 years old. You have also had a far from satisfactory upbringing and have had a series of engagements with the criminal justice system, albeit not to quite the same degree of seriousness as Mainyal.
You have also been assessed as suitable for the imposition of a CCO.
The report about you also assesses you as being a high risk of ‘general re-offending’, based on your attitudes to the current offences before the Court, your lack of employment history, your prior criminal history and your adherence to an offending peer group. The author notes your motivations appear to be superficial to avoid further time in custody. Similarly to Mainyal, the assessment is a long way from instilling a sense of confidence in your prospects as you also appear to show limited insight into your offending behaviour and the causes for it. In your case as well, the author of your report speaks in quite guarded terms about your prospects of rehabilitation.
Similarly to your co-offender, you have indicated your understanding of potential order conditions and requirements should you be placed on a CCO. You have also had explained to you the consequences should you fail to comply with this Order and that a further term of imprisonment could be imposed upon re-sentencing. In those circumstances, you have consented to the making of the Order.
The suppression order issue
I will pause and briefly note an issue that arose in the period just before, and following, the second day of the plea hearing in this matter.
A short time before the second day of the plea hearings in this matter, the Court received confidential material provided by the Chief Commissioner of Victoria Police (Chief Commissioner) in support of an application for a suppression order relating to a witness in the murder trial of WA which was shortly due to begin before another judge of this Court. This material included remarks and opinions regarding possible future criminal behaviour of both Wal and Mainyal.
I considered that the opinions expressed in the material confidentially provided to the Court as being of a particularly grave nature. I regarded the assertions to be capable of bearing relevance to the issues of special deterrence, risk of further serious offending, and the protection of the community on the part of the persons to be sentenced. Accordingly, after a series of confidential submissions made to the Court by the Chief Commissioner, I directed that sufficient information about these submissions to be provided to the parties in order to bring the nature of the assertions to the attention of the prosecution and the legal representatives of the two prisoners.
A copy of the open affidavit dated 2 September 2022 which has been provided to the parties will be placed on the Court file. Furthermore, copies of the confidential material, and related submissions about it, will be retained in a secured envelope marked not to be opened except by order of a judge of this Court.
The material having been brought to the attention of the Court, the parties in these proceedings were expressly invited to make further submissions about the possible impact of the assertions made on the sentencing process. No party sought to make further submissions except to underline that the Court should have no regard to the assertions made.
In any event, I make it expressly clear that now with sufficient transparency having been achieved with the parties to the plea proceedings, that is, of them being made aware of the nature of the assertions made, and with the opportunity to make further submissions to the Court about the use of the opinions, that I have disregarded the material provided to the Court by the Chief Commissioner, and it will have no impact on my conclusions on the sentencing calculus.
I also make it clear that I regard the way in which this material was provided to the Court in the course of the plea hearing as inappropriate. It seemed to me the opinions expressed lacked evidentiary foundation in any event. The circumstances I have outlined above caused a further delay in passing sentence in these matters as the issues raised by the Court required further attention and resolution. The cause of this particular delay in passing sentences was in no way the result of actions by either of you. I have taken this delay into account in assessing the appropriate sentences to be passed.
In passing, I note that nothing is said in the CCO reports by way of explaining what is meant by the risk of ‘general re-offending’, and whether this description includes you both as representing a future risk of violent re-offending.
Visa status – Alith Wal
In your case arguments were advanced as to the prospect of your deportation should you be sentenced to a period of imprisonment for a period longer than 12 months. In the circumstances that I will announce I do not regard myself as needing to resolve this issue.
Sentencing factors
General deterrence
I have had regard to this sentencing factor and have concluded that general deterrence is a factor that must have weight in the sentences to be imposed in this case. Street violence of the kind that occurred is a scourge on our society and must be deterred.
Protection of the community and special deterrence
Protection of the community and special deterrence are factors that apply to your cases. You both have prior histories involving the criminal justice system, and have demonstrated disregard for obeying the law. As observed, the reports provided to the Court leave me with a degree of concern about whether your expressed willingness to take advantage of opportunities to lead law-abiding lives is indeed genuine.
With respect to you, Wal, in light of your criminal history, and based on the report of Mr Luke Armstrong, it appears you have been entrenched in delinquent gangs. Consequently, it has been submitted that specific deterrence is of particular importance to the sentence to be imposed.
In your case, Mainyal, the prosecution puts forward similar submissions. It is plain you have a more serious prior criminal history.
Rehabilitation
The possible rehabilitation of you both is a significant factor in assessing the sentences to be passed onto you. On the one hand, you are both youthful offenders, however, you both have significant prior histories.
In respect of the nature and gravity of the offending that you both committed, there is little to distinguish you having regard to your roles in what you did. However, in respect of matters personal to you both it is evident that you, Mainyal, have a longer and more serious history of offending, and of a particularly relevant kind.
The above said, taking into account all the matters put forward, and all the circumstances of the case, despite some misgivings, I am nevertheless, not prepared to approach the sentences to be passed on you both on the basis that your prospects of rehabilitation should be regarded as extinguished at this point in your young lives.
Concurrency and totality
I have taken into account both these sentencing aspects in determining the appropriate sentences to be passed.
Sentences
On the charges of intentionally causing injury I sentence you, Nyal Mainyal, to nine months’ imprisonment, and you Alith Wal, to six months’ imprisonment. These sentences reflect the serious circumstances in which your offences were committed, as I have outlined in this sentence.
On the charges of affray, possessing a drug of dependence and committing an indictable offence on bail, I sentence you, Alith Wal, to a CCO for a period of 18 months, with the conditions as recommended in the report applicable to you.
On the charges of affray and committing an indictable offence whilst on bail, I sentence you, Nyal Mainyal, to a CCO for a period of two years, with the conditions as recommended in the report applicable to you.
In respect of each of you, the CCOs that will be imposed will include a series of core conditions as well as conditions including those directed towards supervision, unpaid community work, treatment and rehabilitation, non-association, curfews, and judicial monitoring.
Declaration of pre-sentence detention
Alith Wal, you have spent 759 days on remand, and Nyal Mainyal you have spent 750 days in the same adult custody setting. For both of you this has been a significant time spent in difficult circumstances associated with pandemic restrictions.
I declare that these periods of detention are to be reckoned as pre-sentence detention served under this sentence. I acknowledge that these periods exceed the sentences of imprisonment I have imposed upon you both, and that it is therefore intended you will be released shortly, at which time you will begin to serve your CCOs.
Section 6AAA
I declare that had you not pleaded guilty to these matters I would have sentenced you, I would have sentenced you, Mainyal, to 18 months’ imprisonment, and you, Wal, to 12 months’ imprisonment.
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