Lukudu v The Queen

[2019] VSCA 248

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2018 0278

MICHAEL LUKUDU	Applicant
v
THE QUEEN	Respondent

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JUDGES:	NIALL and ASHLEY JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	29 October 2019
DATE OF JUDGMENT:	6 November 2019
MEDIUM NEUTRAL CITATION:	[2019] VSCA 248
JUDGMENT APPEALED FROM:	DPP v Lukudu [2018] VCC 1191 (Judge Gamble)

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CRIMINAL LAW – Appeal – Sentence – Causing serious injury intentionally – Applicant stabbed innocent victim 11 times to abdomen, chest, right elbow and upper leg with knife – Total effective sentence 9 years’ imprisonment – Non-parole period 6 years and 9 months – Whether sentence manifestly excessive – Sentence severe but not wholly outside range – Leave to appeal refused – Nash v The Queen (2013) 40 VR 134; DPP v Kemp [2015] VSCA 108; DPP v Weber [2017] VSCA 93; Nicholls v The Queen [2016] VSCA 250; Hope v The Queen; Pua v the Queen [2018] VSCA 230 referred to.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr P J Smallwood with Ms F G J Fox	Stary Norton Halphen
For the Respondent	Mr J McWilliams	Mr J Cain, Solicitor for Public Prosecutions

NIALL JA
ASHLEY JA:

1. The applicant pleaded guilty in the County Court to a single charge of intentionally causing serious injury.  He stabbed an innocent victim 11 times to the abdomen, chest, right elbow and upper leg with a knife.  It was an entirely unprovoked attack, in public and in the early hours of the morning.  The judge sentenced him to nine years’ imprisonment, with a non-parole period of six years and nine months.[1]  The details of the sentence are as follows:

   [1]DPP v Michael Lukudu [2018] VCC 1191 [138]–[139] (‘Reasons’).

Charge	Offence	Maximum Penalty	Sentence
1	Intentionally causing serious injury	20 years	9 years
Total Effective Sentence		9 years
Non-Parole Period Fixed		6 years 9 months
Pre-Sentence Detention		553 days
6AAA statement		12 years with a non-parole period of 9 years

1. He seeks leave to appeal on the ground that the sentence imposed and the non-parole period fixed are each manifestly excessive.   

1. On Saturday 1 October 2016, the applicant attended a party at a function venue in Noble Park.  There were approximately 50 guests in attendance.  There was music, but alcohol was prohibited within the venue.  The applicant and other guests moved back and forth between the venue and their vehicles to consume alcohol during the night.

1. When the party finished at about 4:00 am, a large number of the guests moved out onto the street, where they remained in small congregations.  It began to rain.  The applicant and a friend, Yual ‘Gedo’ Gai, walked to their car, a Commodore, which was parked a short distance away.  Mr Gai volunteered to drive the applicant and his friends home.

1. Sarah Giek, who had also been at the party with her sister Chatem, asked for a lift home, but said she needed to retrieve her house keys from her sister who was with a small group a short distance away.  Mr Gai then drove the Commodore towards the small group.  That group included the victim Dumisani Chengeta, his friend Michael Maelos, Chatem Giek and Joy Deu.  Ms Deu is Mr Gai’s cousin.

1. Mr Chengeta had given Sarah Giek his jacket when it started to rain.  Ms Giek returned the jacket and Mr Chengeta and Mr Maelos began to walk away.  Having seen Mr Chengeta and Mr Maelos with Ms Deu, Mr Gai, together with  the applicant, got out of the Commodore and said words to the effect ‘Do you know who I am?’, ‘That’s my cousin’ or ‘Don’t mess with my cousin’. 

1. The applicant and Mr Gai became aggressive and commenced yelling threats to Mr Chengeta and Mr Maelos, who, in response, tried to explain that they knew Sarah and Chatem Giek, and that Ms Deu was dating their best friend.  The applicant and Mr Gai became further agitated and moved closer to Mr Chengeta and Mr Maelos, who responded passively by walking away and attempting to reason with the aggressive men.  At that point, the applicant threatened them, saying ‘I’m going to slash your throats’.  The applicant was holding a knife in his hand by his side.

1. Both Mr Maelos and Mr Chengeta ran and were chased by the applicant and Mr Gai.  During the pursuit, Mr Gai kicked Mr Chengeta, causing him to lose his balance and fall.  Mr Chengeta, who was then lying on his back, kicked out to protect himself, but both of his assailants punched him several times while he lay on the ground.

1. After one of the partygoers intervened, Mr Chengeta seized the opportunity to stand and commenced to run away.  Again the applicant pursued him.  Although a friend of the applicant, Longa Galuak, endeavoured to protect the victim by placing himself between the applicant and Mr Chengeta, the applicant was undeterred. 

1. The applicant made contact with the victim and the two of them lost balance, falling to the ground.  Mr Chengeta was lying on his back with the applicant on top of him.  From that position, the applicant used the knife to stab the victim 11 times in the abdomen, chest, right elbow and upper right leg.

1. The applicant fled.  His victim was assisted to a car and driven to the Dandenong Hospital.

1. Mr Chengeta, who was then 24 years of age, sustained life-threatening injuries.  He was taken to Intensive Care, where he remained for a number of days.  He underwent open abdominal surgery to ascertain the extent of his injuries.  He had sustained 11 stab wounds: seven to the abdomen, two to the chest, one to the upper right thigh and another to the right elbow.  One of the wounds to his chest penetrated his right lung, causing a pneumothorax and a collapsed right lung.  A portion of his stomach lining, measuring approximately three to four centimetres in width protruded from his abdomen. 

1. He received nine blood transfusions, a frozen plasma transfusion and a platelet transfusion.  Approximately 40 staples were required to seal the injury to his abdomen.  Sutures were used for the other injuries.

1. In addition to that appalling catalogue of injuries, the judge received a Victim Impact Statement from Mr Chengeta.  That statement recorded that the victim was in pain and fatigued for months, and had difficulty moving and sleeping.  He had to exhaust his accumulated leave entitlements while he was recovering and was not able to return to work until January 2017.  The injury also had an impact on his studies.

1. As will appear, the applicant has been diagnosed with Post Traumatic Stress Disorder (‘PTSD’).  We shall return to that matter.  For the purpose of considering, and rejecting, whether there was any causal connection between the PTSD and the commission of the offence, the judge drew the following conclusions which are convenient to state now:

What occurred thereafter was a concerted chase of the fleeing victim by Mr Gai and Mr Lukudu together, initially, and then by Mr Lukudu alone.  When they caught him, they assaulted him and he merely tried to keep them at a safe distance by kicking out.  Then, after a further chase by Mr Lukudu, the two men ended up on the ground and then once he was in a position of physical superiority over the victim, Mr Lukudu immediately launched a savage, cowardly and sustained attack on the victim with the knife.  At no stage during that attack was the victim likely to have been in a position to ‘turn the tables on Mr Lukudu’ and certainly not, in my view, by means of taking control of the knife that Mr Lukudu was wielding with such ferocity.  It will be clear from what I have already said, that I simply do not accept the account that Mr Lukudu gave to Dr Cunningham, to the effect that he was afraid that the victim was going to get the knife and use it to stab him.[2]

[2]Ibid [92].

1. The applicant was arrested on 27 January 2017 and denied being present in the street in which the attack occurred on the night in question.  The applicant was charged with attempted murder.  The charges were listed for a contested committal hearing in October 2017, but resolved before any witnesses were called by the applicant’s willingness to plead guilty to a charge of intentionally causing serious injury.

The reasons for sentence

1. The judge noted that the applicant had a relevant, but not extensive, criminal history.[3]  He had seven court appearances in the five year period between August 2006 and June 2011.  Most of the offending related to drinking and public nuisance/disorder type conduct.  This included three offences of resisting police, for which he was placed on a 12 month Good Behaviour Bond, without conviction.  In April 2011, the applicant pleaded guilty, and was placed on another 12 month bond, for one charge of recklessly causing injury and one of assault with an instrument.  It appears that the latter offending involved the applicant using a belt to discipline his younger 15 year old sister, causing injury that was later noticed and reported by one of her teachers.

   [3]Ibid [56].

1. The judge set out, in some detail, the applicant’s personal circumstances.  The applicant was born in Sudan and raised in a North Sudanese refugee camp by his parents with his two elder sisters, four younger brothers and two younger sisters.  He was exposed to significant trauma in Sudan, including the killing of a relative.  When he was 12 years’ old, his family relocated to Egypt where the applicant was exposed to severe racism, abuse and physical violence.  He was 16 years’ old when he and his family arrived in Australia.

1. The applicant completed year 12 of VCAL at Westall Secondary College and, although he commenced a diploma in welfare and community service after leaving school, he did not complete that course.  He has had intermittent periods of factory and labouring employment.

1. The applicant was assessed by forensic psychologist, Dr Aaron Cunningham, who provided a report dated 6 July 2018.  Dr Cunningham expressed the view that the applicant presented with a diagnosis of PTSD, stemming from the trauma he observed and suffered in Sudan and Egypt.  Further, Dr Cunningham opined that alcohol was the precipitating agent of the offending and it was likely that the offence would not have occurred if the applicant had been sober.

1. On the plea, the applicant submitted that his PTSD, as described by Dr Cunningham, was relevant to sentence in a number of respects.  First, it was said that his symptoms of depression in the form of emotional disconnection and numbing, marked arousal in the form of hypervigilance, irritability and outbursts of anger, reckless and self-destructive behaviour, sleep disturbance and difficulty concentrating were relevant as part of the essential background and personal circumstance of the applicant. 

1. Secondly, it was submitted that the applicant’s experience of prison had been to date, and will continue to be, more onerous than the prisoners who do not suffer from a PTSD condition.  That is, his PTSD condition meant that the fifth limb described in R v Verdins[4] was engaged.

   [4](2007) 16 VR 269 (‘Verdins’).

1. Thirdly, it was submitted that there was a causal connection between the applicant’s PTSD and the commission of the offence, such as to warrant a reduction in moral culpability.  In making this submission, the applicant relied on the contents of Dr Cunningham’s report and, accordingly, the factual basis for that submission was said to be that he was intoxicated, his cousin had started the fight and he had been drawn into the conflict. 

1. The applicant had told Dr Cunningham that the victim was aware that the applicant had a knife and, when the two of them fell to the ground, the applicant believed the victim was going to grab the knife from him, and it was then he decided to stab the victim in order to free himself and to ensure that the victim did not stab him.  It was said that the PTSD impaired his capacity to properly respond to the situation.  In his report, Dr Cunningham put it this way:

He believed the victim would grab the knife and so stabbed the victim to free himself.  Individuals with [PTSD] have a tendency to over perceive the level of threat they are experiencing and react in excess of what is appropriate.  In my opinion, Mr Lukudu’s offence behaviour illustrates his hypervigilence and hypersensitivity to threat and attack.  However, in my opinion Mr Lukudu’s alcohol abuse was the precipitating agent in increasing his inhibition and impairing his judgement.  In my opinion, Mr Lukudu’s offence behaviour may not have occurred were he sober.  The presence of [PTSD] helps explain the violent nature of his behaviour whilst intoxicated.  In my opinion, Mr Lukudu’s alcohol abuse, combined with his [PTSD] contributed to his behaviour.[5]

[5]Reasons [76].

1. The judge accepted the first two submissions, but rejected the third.  That was because the judge rejected the factual basis upon which Dr Cunningham’s opinion depended.  The judge regarded the applicant’s account that there had been a fight and that he had been drawn into the conflict as a complete misdescription of what had occurred.[6]  The judge noted that the only aggression came from the applicant and Mr Gai.[7]  Put simply, the judge did not accept that there was a factual basis to permit a finding that the applicant was overreacting, as a result of his PTSD, to a perceived threat. 

   [6]Ibid [90].

   [7]Ibid [91].

1. The judge then recorded a number of matters in mitigation.  The judge noted that the respondent pleaded guilty at a relatively early stage.  His Honour acknowledged the utilitarian value of the plea.  However, the judge regarded the applicant’s remorse as nuanced.[8]  The judge recorded the initial denials and patently false claims advanced by the applicant in his record of interview, but noted that his subsequent decision to plead guilty demonstrated that the applicant had taken responsibility for his criminal conduct and displayed some remorse.[9]

   [8]Ibid [98].

   [9]Ibid.

1. The judge noted the strong and ongoing support from the applicant’s family.[10]  The applicant has a young son who has provided him with motivation to lead a more positive life on release from custody.

   [10]Ibid [100].

1. Against those mitigating factors, the judge turned to consider the objective gravity the offence.  The judge noted that intentionally causing serious injury is inherently very serious and, after referring to Nash v The Queen,[11] identified a number of reasons why he regarded the offence as a very serious example of its type.  Those matters included the applicant’s aggressive and threatening attitude towards the victim;  the offence was not spontaneous, but persistent and concerted;  the applicant ignored repeated attempts by the victim and others to curb his aggression;  the attack was on a prostrate and entirely defenceless victim, who had tried to placate him;  the use of a deadly weapon;  the infliction of many blows directed to vital areas of the body;  the serious, life-threatening nature of the injuries, which had significantly impacted on the victim’s quality of life;  and the offence was carried out in a public place in full view of a number of witnesses who could be expected to be, and no doubt were, traumatised by what they saw.[12]

   [11](2013) 40 VR 134 (‘Nash’).

   [12]Reasons [111].

1. Having listed those matters, the judge concluded that the applicant’s moral culpability for the offence was very high.[13]  The judge then turned to consider current sentencing practices and relevant sentencing principles.  It is not necessary to rehearse those matters.

   [13]Ibid [112].

Applicant’s submissions

1. In support of his single proposed ground of appeal that the sentence imposed by the judge was manifestly excessive, the applicant referred to the following constellation of factors: the plea of guilty at an early stage;  the absence of an extensive criminal record;  the fact that, prior to this offending, he had never been remanded in custody or sentenced to imprisonment;  his exposure to considerable violence, death and trauma during his formative years;  the fact that imprisonment will weigh more heavily on him by reason of his trauma symptoms;  the existence of a number of protective factors that may reduce his risk and improve his prospects rehabilitations;  and his PTSD.

1. The submission was buttressed by reference to a number of decisions of this Court, which the applicant said reveal substantially shorter terms of imprisonment for similar or comparable offending.[14]

   [14]DPP v L’Eveille [2018] VSCA 60; DPP v Kemp [2015] VSCA 108 (‘Kemp’);  DPP v Weber [2017] VSCA 93 (‘Weber’);  Nicholls v The Queen [2016] VSCA 250 (‘Nicholls’);  Hope v The Queen; Pua v the Queen [2018] VSCA 230 (‘Hope’);  Webster v The Queen [2016] VSCA 329 (‘Webster’).

Consideration

1. To describe a sentence as manifestly excessive is to identify a conclusion that, having regard to the findings of the sentencing judge and correct sentencing principles, the sentence is wholly outside the range available to the judge.

1. The ground of appeal focuses on the sentence, rather than on any specific error of a kind which may be corrected on appeal in accordance with the principles in House v The King.[15]  Nevertheless, it is not unusual for an error as to result to be demonstrated or exposed by identifying potential areas in which the sentencing judge may have gone wrong.  Thus, a sentence may only be explicable on the basis that the judge had given inadequate consideration to one or more of the matters that are required to be considered in arriving at a just sentence.

   [15](1936) 55 CLR 499.

1. In the present case, it is important to commence our consideration by noting the high quality of the reasons for sentence, which are carefully drawn and conspicuously fair in their recounting of the facts and principles applied by the judge.  There is no hint in the reasons that the judge may have proceeded on any misconception as to the facts, the submissions made to him or the law that he was required to apply.

1. In considering the sentence imposed, which, on any view, is a very significant one for a man who had never been remanded in custody or sentenced to imprisonment before, it is important to recognise that intentionally causing serious injury, for which the maximum term of imprisonment is 20 years, is always a serious offence.  However, the rubric of serious injury comprehends a wide range of harm, extending up to the catastrophic.  Within the scope of the offence, the intentional infliction of serious injury by stabbing an entirely innocent victim multiple times with a knife is an extremely grave offence.  That must be so for at least the following reasons. 

1. First, the use of a knife carries with it the high risk of serious injury to the victim’s internal organs and blood supply.  As occurred in this case, injuries sustained through the use of a knife are often life-threatening.

1. The applicant’s explanation that he carried a knife because he had been the victim of violence or threats in the past and carried it to defend himself, is of no mitigatory value.  This is not a case in which the applicant is to be sentenced for an extravagant or disproportionate defensive deployment of a knife.  Rather, the knife was produced by the applicant when he was the aggressor and under no threat.  The use of the knife to inflict serious injury was entirely offensive.  It lacked any defensive character. 

1. The judge was correct to reject the notion that the applicant was caught up in a conflict and that the ultimate use of the knife arose only in the context of a battle at close quarters, in which he feared the knife might be used against him.  The reality was starkly different.  The applicant produced the knife then pursued Mr Chengeta, ultimately stabbing him 11 times.

1. Secondly, the applicant had the opportunity to desist.  Mr Chengeta and Mr Maelos tried to diffuse the situation, avoid conflict and then fled in order to avoid violence.  Even after the applicant had struck Mr Chengeta, when he first fell to the ground, there was another opportunity to stop further violence after Mr Chengeta got up and ran again.  Even after that, the intervention of Mr Galuak provided a further opportunity to stop the attack.  The applicant took none of those opportunities.  His failure to do so reflects a high degree of moral culpability. 

1. Thirdly, the injuries sustained by the victim were extremely serious.  By fortune and not design, the injuries were not fatal and Mr Chengeta has recovered from the physical injury, although this took many months.  Understandably, he has experienced feelings of anger, fear, frustration and anxiety.  The fact that Mr Chengeta appears to have made a recovery from the injury and has returned to work means that the consequences of the attack were not entirely irremediable, as is sometimes seen in offences of this kind.[16] 

   [16]Nash (2013) 40 VR 134.

1. We have read each of the particular decisions relied on by the applicant as evidence of current sentencing practice.  It is only necessary to refer to four of them to reveal the differences that make any precise translation impossible.

1. In Kemp, the accused had stabbed the victim 27 times, causing serious injury.  Unlike in the present case, the sentencing judge had found that there was a realistic connection between the accused’s mental state and the offending, and a sensible moderation of the application of the principle of general deterrence was appropriate.[17]  In allowing an appeal by the Director for Public Prosecutions, this Court imposed a sentence of six years’ imprisonment, which the Court described as lenient but warranted on account of the offender’s metal illnesses.[18]

   [17]Kemp [2015] VSCA 108, [17].

   [18]Ibid [55].

1. In Weber, another Crown appeal, the offending involved a sustained attack on a defenceless victim by punching and kicking.  No weapon was used.  The victim was diagnosed with internal abdominal bleeding, a mesenteric lacerationhttp:// - with an arterial bleed, a devascularised small bowel, bilateral facial fractures and two fractures to the little left finger.  He underwent emergency surgery to remove a small section of his bowel, and to repair the arterial bleeding.[19]  Allowing the appeal, this Court resentenced the offender to five years’ imprisonment with a non-parole period of three years.[20]  Notably, the Court said that sentences for intentionally causing serious injury have increased significantly in recent years and that a table of sentences annexed to the judgment in Nash showed that sentences for this particular offence ranged from two to 11 years’ imprisonment, with the majority in the range of five to seven years.[21]

   [19]Weber [2016] VSCA 93, [10].

   [20]Ibid [66].

   [21]Ibid [59]–[60.

1. In Nicholls, the offender was convicted after a trial before a County Court jury to two charges of intentionally causing serious injury.  He shot two victims in the leg, with the offences occurring seven months apart.  He was sentenced to eight years’ imprisonment on each charge, with three years cumulation.  An appeal against sentence was dismissed.[22]  Justices Osborn and Santamaria noted that there was no evidence of remorse;  both offences involved the use of a firearm;  there was a need for specific deterrence because of the offender’s readiness to use firearms to solve problems;  the offender had relevant prior offences;  and general deterrence and protection of the community were important.[23]

   [22]Nicholls [2016] VSCA 250, [5]–[6] (Maxwell P), [143] (Osborn and Santamaria JJA).

   [23]Ibid [135]–[141].

1. The offenders in Hope were prisoners who viciously assaulted prison guards, resulting in serious injury.  One offender was sentenced at first instance to 8 years’ imprisonment[24] and the other was sentenced to 10 years’ imprisonment.[25]  The applications for leave to appeal against sentence were refused.[26]

   [24]As a total effective sentence for one charge of intentionally causing serious injury, one charge of recklessly causing injury and two charges of intentionally causing injury.

   [25]As a total effective sentence for the same set of four charges described above.

   [26]Hope [2018] VSCA 230, [97].

1. It is possible to multiply the examples.  In the course of oral argument, we were referred to further examples, including the very recent decision of this Court in DPP v Evans.[27]  A consideration of cases in this Court for intentionally causing serious injury reveals that there is a wide range of circumstances covered by this offence;  that sentences for the offence have, in recent times, increased;  and that it is relevant to have regard to the use of a weapon, the context in which the offence occurred and the severity of the injuries sustained by the victim.  Moreover, general deterrence remains an important aspect of a just sentence in relation to offences of this kind.  Sentences in the high single figures, and into the double figures, have been imposed. 

   [27][2019] VSCA 239.

1. In the present case, the judge specifically addressed current sentencing practice and had regard to sentencing statistics published by the Sentencing Advisory Council and the sentencing snapshot for the period 2012–13 to 2016–17.[28]  Ultimately, the judge noted that consideration of other cases is of limited assistance.[29]  We would endorse that sentiment.

   [28]Reasons [113]–[121].

   [29]Ibid [120].

1. There were, as the judge recorded, a number of factors relation to the applicant’s personal circumstances that called for a measure of moderation in sentence.  He had a very difficult upbringing and suffered from violence, displacement and racism.  He suffers from PTSD.  That condition renders his incarceration more onerous as his exposure to the ongoing threats and trauma of prison will weigh more heavily on him when compared with someone without the condition.  

1. Further, after some obfuscation, he pleaded guilty.  We note, as the judge did, that the plea of guilty had both utilitarian significance and provided evidence of some remorse. 

1. His ongoing family support, his relationship with his young son, his acknowledgement of his condition and the need for treatment, and the positive steps taken when on remand improved the prospects of rehabilitation.

1. The judge carefully weighed the mitigating factors.  As have we.  The result arrived at does not suggest any error in the weight attributed to any particular factor by the judge. 

1. Ultimately, although the sentence is a severe one, we are not persuaded that it was wholly outside the range so as to be manifestly excessive.  In the result, the application for leave to appeal against sentence must be refused.

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