R v Akol - [2020] QCA 50

[2020] QCA 50

COURT OF APPEAL

SOFRONOFF P
FRASER JA
CALLAGHAN J

CA No 3 of 2019
SC No 1761 of 2017

THE QUEEN

AKOL, Akol Deng Applicant

BRISBANE

FRIDAY, 20 MARCH 2020

JUDGMENT

SOFRONOFF P: The applicant pleaded guilty to causing grievous bodily harm with intent. The offence arose in the following way. There was a group of people who were drinking together, and at some point during that night the complainant invited the group to continue the party at his house. The complainant told the applicant that he did not wish him to join them because he was too drunk, but the applicant nevertheless went.

There was a physical altercation between the applicant and another person. The complainant then asked everybody to leave, but the applicant and several other people ignored that request. The applicant then obtained a 30 centimetre long knife from the complainant’s kitchen and attacked the complainant. He stabbed him six times, and the result of the stabbing was very serious for the complainant. He was admitted to the intensive care unit of the hospital and spent six weeks in hospital. He suffered severe internal injuries which were life-threatening.

The applicant is an immigrant to this country. He lived in Yemen and Sudan before his family immigrated to Australia when he was about 11 or 12. He did not at that point know how to speak English but went to school and gained some proficiency in the English language.

He has a previous criminal history in three states, namely, Tasmania, Victoria and Queensland. It is unnecessary to deal with these in any detail. It is sufficient to mention that in Victoria between 2011 and 2016 he had been convicted of offences involving violence, including intentionally causing injury, recklessly causing injury, attempted robbery and assault in company. He was sentenced in Victoria to terms of imprisonment. In 2016 he was placed on a community corrections order in Victoria, and while subject to that order he committed several offences in Queensland.

A psychological report was prepared and submitted and read by the learned sentencing Judge. In substance, according to that report, it may be that the applicant has some kind of underlying condition that is related to his propensity for violence. The most significant fact that emerges from the submissions that were made on his behalf and from the report itself is that he is a person who is, for reasons to do with his upbringing and his history, liable, when stressed and overwhelmed, to find comfort in alcohol. When he does so, he engages in reckless and violent behaviour. That is consistent with the circumstances of the offence with which he has been charged.

The applicant expressed remorse for his actions, and the learned sentencing Judge accepted that the applicant was truly remorseful, and his Honour took that into account. At sentencing, the prosecution submitted that a sentence in the order of nine to 10 years imprisonment with a serious violent offence declaration would be…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Akol

Details

AGLC: R v Akol [2020] QCA 50
Case: [2020] QCA 50
Decision Date: 20 MARCH 2020

CaseChat Overview and Summary

The case of R v Akol before the Court of Appeal involved Akol Deng Akol, who had pleaded guilty to causing grievous bodily harm with intent. The incident in question arose from a social gathering where the applicant, despite being told not to join by the complainant, proceeded to attend. A physical altercation ensued, leading the complainant to ask everyone to leave. The applicant, having procured a knife, stabbed the complainant six times, causing severe internal injuries that required six weeks of hospitalisation in intensive care. Akol, who had a prior history of violent offences in multiple states, submitted a psychological report suggesting a propensity for violence linked to stress and alcohol consumption. The sentencing judge, after considering the submissions and the report, sentenced Akol to nine years imprisonment, reduced to eight years and nine months after accounting for time already served. The appeal against the sentence was dismissed, except for the correction of the time Akol had already served in custody.

The court was required to determine whether the sentence imposed by the trial judge was appropriate and whether any errors were made in the sentencing process. The appeal focused on the calculation of time served prior to sentencing, which was inaccurately stated by the trial judge. The court also considered whether the sentence was disproportionate or whether there were any other errors in the application of sentencing principles.

The Court of Appeal, after reviewing the submissions and relevant authorities, found no substantial error in the sentencing process or the application of legal principles. The court identified a minor but significant error in the calculation of time served by Akol prior to sentencing. The trial judge had incorrectly stated that Akol had served 557 days in custody, when in fact he had served 571 days. This discrepancy led the court to allow the appeal and correct the sentence to accurately reflect the time Akol had already served.

The Court of Appeal allowed the appeal to the extent of correcting the time served in custody, with the revised order stating that the 571 days spent in custody between 9 February 2017 and 3 September 2018 be declared as time served. The rest of the sentence was upheld, and the appeal was dismissed.

Orders