R v Akok

[2019] NSWSC 1235

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:

R v Akok [2019] NSWSC 1235

Hearing dates:

6 September 2019

Decision date:

18 September 2019

Jurisdiction:

Common Law - Criminal

Before:

Button J

Decision:

(1) Convicted of murder.

 

(2) I impose a non-parole period of 12 years, to date from 28 October 2015.

 

(3) That will be followed by a parole period of 4 years, to commence on 28 October 2027 and to expire on 27 October 2031.

 

(4) To express my sentence another way, I have imposed a head sentence of imprisonment for 16 years, with a non-parole period of 12 years, with a full backdate.

 

(5) Were it not for the plea of guilty of the offender entered many years ago, I would have imposed a head sentence of imprisonment for 21 years 6 months.

 (6) The first date upon which it appears that the offender will be eligible for possible release to parole is 27 October 2027.

Catchwords:

CRIMINAL LAW – sentence – murder – plea of guilty – discussion of objective and subjective features – intent to kill – use of weapon – offender aged 18 at the time of murder – Sudanese refugee – offender in prodromal stage of schizophrenia at the time of offending – offender diagnosed in custody with treatment-resistant schizophrenia – strong subjective case – sentence imposed

Category:

Sentence

Parties:

Regina
Marko Akok

Representation:

Counsel:
A Morris
N Steel

  Solicitors:
Solicitor for Public Prosecutions
Lisa De Luca & Co

File Number(s):

2015/317024

REMARKS ON SENTENCE

Introduction

1. Mr Marko Akok (the offender) was charged many years ago with the murder of Mr Pabek Gak (also known as Teddy Gak, and to whom I shall usually refer in these remarks as the deceased). That offence was alleged to have occurred in the evening of 27 October 2015. At an early stage of the proceedings, the offender pleaded guilty in the Local Court, and the matter was committed for sentence to this Court. However, the resolution of the matter has been very much delayed by investigations of the mental state of the offender, and in particular whether he was fit to stand trial, including to enter a valid plea of guilty. Finally, that question has been resolved in the affirmative, and it falls to me to sentence the offender for the murder of the deceased today.

2. The offence of murder carries a maximum penalty of imprisonment for life without possibility of parole and, in the circumstances here, a standard non-parole period of 20 years. I regard each of those as important guideposts provided by Parliament, to which I should have regard in the exercise of my sentencing discretion. I have also approached the matter on the basis that any disputed aggravating feature must be proven beyond reasonable doubt, but any disputed mitigating feature need only be proven on the balance of probabilities. Some matters, inevitably, remain a mystery.

Objective features

3. The agreed facts with regard to how this murder came to occur can be shortly stated.

4. As at Tuesday 27 October 2015, both the offender and the deceased were young men of Sudanese background who were living in the western suburbs of Sydney. At about 6 pm that day, they were drinking alcohol with other young friends at a location behind a public toilet in Mount Druitt. Some cannabis was also consumed by members of the group. The young people were enjoying listening to rap music, singing along to it, and the atmosphere was convivial. For some reason, however, the offender became irritable, and said something to the effect that he was friendless within the group.

5. Most of the young people became intoxicated. At about 9 pm, some of them began to leave the social event. Eventually, only the offender and the deceased remained behind the toilet block.

6. Some kind of verbal disagreement developed between the two young men. For reasons that are not entirely clear, the offender inflicted severe and fatal violence upon the young companion with whom he had been socialising in the preceding hours. In doing so, he used a broken bottle that was to hand, and perhaps his fists or feet, but nothing more than that.

7. A subsequent autopsy on the body of the deceased showed many abrasions and open irregular wounds on his face, jaw and neck, some of which contained fragments of glass. Another wound to the face extended all the way to the underlying right jawbone. There was also a large wound to the neck that extended through an underlying large muscle in that location, the main artery on the left side of the neck, and thereafter to the back of the neck of the deceased to the gullet or food pipe. There were also extensive injuries to his mouth, a number of fractures to the bones of his sinus cavities, and fractures to his upper jaw and the wall of bone connected to an eye socket. There was also bleeding on both sides of the brain, and bruising there as well. Clearly, his final ordeal was extended and brutal indeed.

8. Thus the life of a young man was brought to an end, seemingly over nothing more than an exchange of words between two intoxicated young people.

9. Some time later that evening, the offender caught up with some of his friends. In the course of a further argument with one of them, the offender said, “I just killed somebody who kept calling himself my cousin”. At that time, the offender could be seen to be covered in blood. Later, the offender said to other young people “I killed my cousin… Up there. I killed him. I stabbed him”, whilst pointing to the toilet block.

10. The body of the deceased was soon discovered. In the meantime, the offender had made his way to the local railway station. He remained covered in blood, and had an injury to his right hand. Ambulance officers were called, and on arrival they bandaged the cut thumb of the offender, and took him to hospital. There, the offender spent a long time in a toilet cubicle, and one can infer that he was making an effort to wash the blood of the deceased from his shoes. That was surely fruitless, in light of all the blood that more than one person had already seen on him, and the open confessions that he had already made.

11. The offender left hospital and walked to the vicinity of Blacktown library. He met another group of young people who were playing music and drinking alcohol in a public place. Most of them noticed the dried blood on the clothes of the offender. When a young man asked the offender if the deceased would be joining them, the offender produced a cracked beer bottle from his pocket, and replied “I killed Teddy. I picked up this beer bottle. I smash it, I stabbed him, stabbed him in the neck…” He also told the other young person that it was indeed the blood of the deceased that could be seen on his clothing. Later, the offender told another person that he had bashed the deceased; that he regarded him as a “gronk” and a person who was not to be trusted; and that the deceased had been “talking shit” about him.

12. Afterwards, it became clear that the offender had taken other simplistic steps to hide his guilt: he had dragged the body of the deceased some distance from the location where the fatal violence had been inflicted, and at one stage he took off his shirt and tried to burn it.

13. Eventually, the body of the deceased was located in the second location, and there was later found to be the blood of the offender upon it. The accused was arrested at about 2.30 on the morning of 28 October 2015, and was found to be too intoxicated to be interviewed. At about midday, 10 hours later on that day, he took part in a recorded interview with police, and told a number of barefaced lies. He was charged with the offence of murder, and has been in continuous custody ever since.

Objective seriousness

14. All that I have recounted so far was not in dispute between the parties. An important matter that was in dispute was whether or not I could be satisfied beyond reasonable doubt that, at the time of the infliction of the fatal violence, the offender intended to kill, or, in the alternative, merely intended to inflict really serious physical injury upon the deceased.

15. It is true, as defence counsel has said, that the applicant was grossly intoxicated at that time, at the least by alcohol and perhaps by cannabis as well. It is also true, for reasons that I shall explain in more detail later, that his mental health was at the least compromised then. It is also true that the outburst of violence was, if not irrational, certainly completely disproportionate to the exchange of words that, on the evidence, precipitated it. All of those factors argue against a finding of an intention to kill being established to the criminal standard.

16. To be weighed against that is the use of a sharp implement; the location of the attack being the deceased’s head and neck; the infliction of multiple injuries by way of repeated blows; the use of force sufficiently powerful to break many bones; the fact that, afterwards, the offender was well aware that he had inflicted death; and, most importantly to my mind, the fact that the neck was slashed by way of a significant wound that was long and deep. Whilst making due allowance for the mentally compromised and intoxicated state of the offender at the time of the assault, I am compelled to the view that he did indeed intend to kill the deceased, at the latest by the time when he inflicted that wound to the neck.

17. Having determined that disputed question, it is appropriate for me to assess the objective seriousness of this offence of murder. Of course, all examples of the most serious crime known to law are offences of the utmost gravity, featuring as they do the unlawful extinguishment of a human life in the most inculpatory circumstances. But even within that context of overarching seriousness, there can be significant variations, and it is appropriate for me to make some assessment of the gravity of this particular murder, not least so that I can sensibly reflect upon the two guideposts of the maximum penalty and the standard non-parole period.

18. Here, although I accept on balance that there was some sort of argument and some exchange of force between the two young men, the deceased caused no injury to the offender (I proceed on the basis that the cut to his thumb was self-inflicted when he wielded the broken bottle). A weapon was used. Repeated blows were inflicted. The deceased was alone, vulnerable, and certainly by the end of his ordeal, defenceless. An intention to kill was present, at least at some stage. The life of a young man in his early 20s with his whole life in front of him has been snatched away.

19. On the other hand, the offence was spontaneous. It was very largely motiveless. It was thoroughly unprofessional, as evidenced by its easy detection and indeed the openness with which the offender revealed to others what he had done. Its brutality in my opinion bespeaks a loss of control, not something done cold-bloodedly. Although an implement was used, it was one that simply happened to be at hand. And although an intention to kill did exist, at least at one stage, it must be seen in the context of the mental condition of the offender, to which I shall turn shortly.

20. By any measure, this tragic, fruitless termination of the life of a defenceless young man by an act of brutal violence must be assessed as a very grave example of the offence of murder.

Subjective features

21. As I have said, the offender pleaded guilty to the offence of murder many years ago. The parties were agreed that there must be a discount of 25% upon the head sentence that I shall impose, in order to reflect the utilitarian value of that step.

22. A thumbnail sketch of the life of the offender is as follows. It is largely based on two reports prepared by an eminent forensic psychiatrist, and a letter from the father of the offender, neither of whom was required by the Crown for cross-examination at the proceedings on sentence. I accept the following on the balance of probabilities.

23. The offender was born in December 1996, and accordingly as at October 2015 was some months short of his 19th birthday, and is now approaching his 23rd birthday. He spent the first few years of his life in Sudan, a country that has been notoriously wracked by hunger, civil strife and bloodshed for years, and her citizens have suffered terribly as a result. The family of the offender escaped to Egypt when he was aged about five or six. Although the family was no longer in fear of death there, they certainly suffered a great deal of hardship, and were often deplorably mistreated based on the colour of their skin. Eventually they came to Australia when the offender was a boy of nine.

24. There can be no doubt that all that had occurred to the offender in the first nine years of his life, through no fault whatsoever of his own, is a story of great deprivation and disadvantage, and I have no doubt that it has damaged him psychologically.

25. For a time, the family lived together at an address in the western suburbs of Sydney. Although there was a period during which his parents separated, I believe that theirs was generally a happy home in which a group of refugees from a place of great hardship were doing their best to make a fresh start, and in which the offender enjoyed good relationships with other members of his family.

26. The offender was given a religious education, and eventually he was sent to live at a boarding school in a country town hundreds of kilometres away from Sydney. Whatever the good intentions that were behind that step, it turned out badly, and the offender was eventually expelled halfway through year 10 for fighting and stealing. Since leaving school, he has lived at home, and has been very largely unemployed.

27. The offender began drinking alcohol when he was only a child of 13 years of age, and was a heavy drinker by the age of 15. As I have recounted, he was certainly drunk at the time of the offence. He has only abused prohibited drugs very spasmodically, and there is nothing to suggest that they have been a problem for him. His physical health has always been good.

28. Regrettably, the offender has not been free of interactions with the criminal justice system; defence counsel had no objection to his juvenile criminal record being placed before me in the proceedings on sentence, as follows.

29. In May 2013 he was placed on probation by the Children’s Court for an offence of armed robbery. He was called up on that probation, and eventually served a control order of four months. In similar vein, in January 2014, he was placed on probation for two offences of stealing from the person, and ended up serving short control orders for them as well. Later that year, he received a further control order of 12 months, with a non-parole period of four months, for an offence of assault with intent to rob. He was also placed on probation for an offence of assault occasioning actual bodily harm, which yet again led to a call up and a short period of detention.

30. Finally, in March 2015 in the Children’s Court, he was sentenced to detention for an aggravated robbery that he had committed in December 2014. A control order of 18 months with a non-parole period of 10 months commencing on 20 December 2014 was imposed. The head sentence of that control order expired on 19 June 2016, with the result that the offender was on conditional liberty for an offence of serious violence when he committed this offence of fatal violence. That is obviously a significant aggravating feature of this matter. As for his juvenile criminal record for repeated offences of violence more generally, it plays no role in my determination other than disentitling the offender to leniency.

31. All of the crimes of the offender must be seen in the context of his mental health.

32. To state things succinctly, at the time when the offender was living in the community, and despite his interactions with the criminal justice system, no deep problem in that regard was suspected, and no investigations or treatment were undertaken as a result.

33. But after the offender had been bail refused for a time on this charge, he began to behave very bizarrely in gaol. To give one example from many, he stuffed toilet paper into his ears, an act from which one might readily infer that he was trying to block out distressing auditory hallucinations. For a long time, through shame and fear, the offender tried to hide his mental condition. Eventually, he became more open about it, and revealed that he has been suffering psychotic symptoms for years. Indeed, he has now been diagnosed with schizophrenia, and it has proven to be resistant to a degree to medication. It was the slow process of the discovery of the truth, and the changing approach of the offender to that truth – that he suffers from a chronic, significant, mental illness – that has caused this matter to be so delayed; apart from anything else, over the past many months, two separate fitness hearings have needed to be conducted before me.

34. There remains another significant point of dispute between the parties: what was the mental state of the offender at the time of the murder, and what, if any, causative effect did it have on the offence?

35. In short my answer is, I accept the opinion of the eminent forensic psychiatrist qualified by the defence that, at the least, the offender was suffering the prodromal or preliminary stage of schizophrenia as at October 2015.

36. Indeed, bearing in mind that the offender has now spoken openly to his treating psychiatrist of hearing the “voices of angels” since he was aged 15 years, and bearing in mind that that is the time when he began to drink heavily and began to intersect with the criminal justice system, I go further: I am satisfied on the balance of probabilities that, at the time of the murder, the offender was suffering, if not from schizophrenia itself, then certainly from a condition that was beginning to approach it, in terms of disorganisation of thinking and mood disturbance.

37. And I also believe that that condition played some causative role in what the offender did that evening, even allowing for his intoxication with alcohol, and for his previous unlawful acts of violence. Having said that, of course by his advised plea of guilty to the offence of murder, the offender concedes that he was neither suffering from a completely exculpatory mental illness, nor from any mental condition that should reduce his culpability from murder to manslaughter.

38. Each of those three factors – the fact that when he committed this offence he was less than a year beyond the age at which the criminal justice system judges one to be an adult; his grossly disrupted and deprived early years; and my satisfaction on balance that the offender was not at all mentally well at the time of the offence, and that that condition played a role in its commission – sounds powerfully in mitigation. In my opinion, in combination they call for an unusual sentence for an offence of intended fatal violence.

39. To conclude my discussion of aspects of the offender as he is now, it is quite true that he took a number of unsophisticated steps to try to hide his guilt, including by treating the body of the deceased with contempt by dragging it a considerable distance. It is also true that there is little or no evidence of remorse. On the other hand, he has certainly accepted responsibility for the death of the deceased from a very early stage, with the inevitable consequence of many years of imprisonment. And I also think that the point is soundly made by his counsel that the blunting effect of treatment-resistant schizophrenia on one’s thinking and feeling surely plays a role here. In other words, whilst it is true that remorse on the part of the offender is not able to be established on balance, I approach that fact on the basis that it is largely a function of the significant mental illness suffered by this young man, not as a result of the offender wilfully setting his face against the enormity of his actions.

21. As for the future, there are some grounds for optimism. It is a very big step for the offender to have admitted that he is suffering from a serious mental illness, and that he needs psychiatric help to deal with it. And it is also possible that, over the years ahead, ways will be found whereby that illness can be managed even more effectively than it is being managed now. It is true that the fact that it has not been able to be resolved entirely is a matter of concern, in terms of the protection of the community in the future. But the release of the offender will be many years from now, and my sentence certainly does not reflect any finding that it must be extended for that purpose. One is entitled to possess, I think, a guarded optimism that one day the offender will be able to rejoin the community, and play a fruitful role within it.

Various aspects

41. I turn briefly now to a number of separate aspects of my task.

42. First, although the offender served a short period of balance of parole after he was arrested for this offence, as a matter of discretion a full backdate will be granted until the date when continuous custody for this homicide commenced; that is, 28 October 2015.

43. Secondly, these remarks reflect all of the aggravating and mitigating features that I have taken into account, and I do not propose to repeat them mechanistically.

44. Thirdly, the point is soundly made by defence counsel that this is a matter in which, for many reasons, special circumstances could be found leading to an extension of the parole period of the sentence to be imposed. There is force in that, but still and all the non-parole period at which I have separately arrived cannot be reduced; if I were to do so, I believe that it would no longer adequately reflect the objective gravity of this violent taking of a precious human life. Having said that, there has been some minor rounding down in my calculations, because the law does not concern itself with trifles.

45. Fourthly, the offender should be aware that, in light of the nature of the offence that he has committed, he may not be released, even at the conclusion of his entire head sentence, if it is established at that stage that he presents a danger to the community.

Victim impact statement

46. I have spoken at length about the young man who is in the dock today. But I have not forgotten the other young man, who is absent. He was born in June 1991, and was therefore 24 when he died, and would now be 28 years of age.

47. In the proceedings on sentence, I received a very moving and eloquent victim impact statement prepared by the step-brother of the deceased, on behalf of the whole family. It sets out the terrible, permanent consequences of this murder, quite apart from the taking of a human life. The statement speaks of the tragic loss of a son and brother who was very much loved, and who himself was a lover of music and fun. I accept that this futile, senseless loss has been heartbreaking and devastating for a family who, I infer, went through their own ordeal before they came to Australia, and who have, since their arrival here, never lived a life that featured privilege or ease. It is clear that all members of the family have suffered an “unmeasurable sense of grief and sorrow”. In particular, the mother of the deceased has simply been broken by his death.

48. I extend my sincere condolences to all of those who love and have lost the deceased. And I express the hope that the conclusion of these much delayed proceedings today will provide some measure of closure and relief to those who mourn young Mr Gak, in their despair.

Orders

49. Marko Akok, you are convicted of the offence of murder.

1. I impose a non-parole period of 12 years, to date from 28 October 2015.

2. That will be followed by a parole period of 4 years, to commence on 28 October 2027 and to expire on 27 October 2031.

3. To express my sentence another way, I have imposed a head sentence of imprisonment for 16 years, with a non-parole period of 12 years, with a full backdate.

4. Were it not for the plea of guilty of the offender entered many years ago, I would have imposed a head sentence of imprisonment for 21 years 6 months.

5. The first date upon which it appears that the offender will be eligible for possible release to parole is 27 October 2027.

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Amendments

18 September 2019 - published revised version

Decision last updated: 19 September 2019