R v AM
[2021] VSC 397
•2 July 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2020 0054
| THE QUEEN | Crown |
| v | |
| AM | Accused |
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JUDGE: | TINNEY J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 21, 22 & 23 June 2021 |
DATE OF SENTENCE: | 2 July 2021 |
CASE MAY BE CITED AS: | R v AM |
MEDIUM NEUTRAL CITATION: | [2021] VSC 397 |
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CRIMINAL LAW – Sentence – Robbery – Of two young people waiting at a bus stop – Crime committed in company with another offender – Third offender joined in attack upon victims, killing one and seriously injuring the other – Accused originally charged with murder and other crimes – Long period on remand – Criminal history for similar offending – Early offer to plead guilty - Lack of remorse – Accused sentenced as child – Sentencing considerations – Released on a youth supervision order with conviction for 9 months.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr R Gibson QC with Ms S Lenthall | Ms A Hogan, Solicitor for Public Prosecutions |
| For AM | Mr T Marsh | Victoria Legal Aid |
HIS HONOUR:
Introduction
AM, you have pleaded guilty to a charge of robbery, and admitted prior convictions. Your robbery was of a young man named Nathanial Hakiwai (‘ Nathanial ’) and took place in the middle of the day at a bus stop on a busy suburban street in the north-west of Melbourne. Your co-offender is Chol Kur (‘Kur’) who also pleaded guilty to a charge of robbery. While you and Kur were in the process of carrying out your crime, a friend of yours, Joshua Horton (‘Horton’), carried out attacks using a knife upon the younger brother of Nathanial , Maaka, and then upon Nathanial himself. Maaka was killed and Nathanial was seriously injured. You are not responsible for those crimes.
The maximum penalty for the crime of robbery is imprisonment for 15 years.
Background
Nathanial was aged 18 at the time of the events. His younger brother Maaka was 17, having celebrated his birthday only ten days before his death. They are the two sons of Stirling and Karli Hakiwai. Mr Hakiwai was from New Zealand of Maori background. He moved to Australia in 1999, meeting his eventual wife shortly after his arrival. They have four children together, the younger two being sisters for Nathanial and Maaka named Leilani and Kiripaeahi (Kiri-Pye-Ahee).
For some years, the family lived on the Gold Coast while Mr Hakiwai worked in various locations on a fly-in fly-out basis. In May 2019, however, he secured new employment in Melbourne. He relocated here in June 2019, and was joined in turn by Maaka and then Nathanial . It was planned that his wife Karli and the two younger children would move to Melbourne to join Stirling and the boys at the conclusion of the 2019 school year. Tragically, because of the criminal actions of Horton, that never occurred.
At the time of these events, Stirling, Nathanial and Maaka were living together at a house in Main Road West, Kings Park. Nathanial and Maaka had each secured employment shortly after moving to Melbourne. As they had only been in Melbourne a short time, they did not know many people. They spent their time working, hanging out together and going to the gym.
You were 17 at the time of your crime and lived in Hillside with your parents and siblings. You and Kur were both friends, or at least, associates, with Horton at the time of these events. Nathanial and Maaka were complete strangers to you.
Events leading up to your crime
Nathanial and Maaka spent the morning of Saturday 28 September 2019 at home with their father, Stirling. In the early afternoon , Maaka arranged to meet up with his cousin and go to a gym. Nathanial decided to go with him. Just prior to 2.30 pm, the brothers left their house and walked the short distance to a bus stop on Main Road West, 50 metres west of the intersection with Oakwood Road which was controlled by a roundabout. They waited for the bus to come. Nathanial was wearing a Philadelphia 76ers cap.
In circumstances the details of which are not necessary to relate here, but which are set out in the Prosecution Opening on Plea (‘the prosecution opening’), on that morning, you, Kur and Horton, were rear seat passengers in a Toyota RAV4 vehicle being driven by a young female named NW[1] and containing two other young females. The vehicle was driven to a number of locations that day.
[1]Name initialised to protect the identity of NW.
It so happened that a few minutes after the arrival of Nathanial and Maaka at the bus stop in Main Road West, the vehicle in which you were a passenger arrived at the intersection with Main Road West via Oakwood Road and hence, came upon the Hakiwai brothers who were waiting at the bus stop, minding their own business. There was discussion in the car between you and Kur about ‘drilling’, that is, robbing the boys, and an agreement was reached that you would do this. Horton was not involved in this discussion. The RAV4 entered the roundabout and completed two full circles before exiting west onto Main Road West. During this process, you directed NW to stop the car so that you and Kur could go and ‘drill’ the boys.
The crime
The vehicle came to a stop a short distance to the west of the bus stop. Nathanial observed a male, alleged to be Kur, put his head out of the rear of the vehicle and yell out, ‘Where are youse going?’ Nathanial replied that they were off to the gym. Kur got out of the vehicle, followed shortly thereafter by you. You and Kur approached the Hakiwai brothers. Kur engaged Nathanial in some small talk to disarm him, and then, in reference to the cap being worn by Nathanial , stated, ‘Run me that hat’. Nathanial refused to do so. Kur lunged forward and grabbed the cap by the peak and removed it from Nathanial ’s head. Nathanial grabbed the cap and snatched it back. Nathanial pushed Kur and then you when he saw you apparently approaching Maaka. Nathanial was then punched by Kur to the mouth and he was also kicked to the chest. He ended up on the ground. At some point Kur was observed by some of the occupants of the car to also fall to the ground. As Nathanial was getting up, he observed Maaka being held in a headlock by you in a somewhat bent-over position. As Nathanial saw it, Maaka seemed confused about what was happening, but was not resisting and his body language was quite relaxed.
At this point, Horton left the vehicle by the rear drivers’ side door, armed with a large knife. He walked straight over to where Maaka was still being held by you. He stabbed Maaka once to the abdomen in an upwards motion towards his chest. Maaka exclaimed, ‘What the fuck?’ He tried to run but almost immediately collapsed to the ground.
Nathanial himself tried to run but stopped when he saw his brother fall to the ground. He yelled out for help. Horton then came at him with the knife. Nathanial tried in vain to fend him off, but Horton succeeded in stabbing him to the outer side of his left thigh. Nathanial fell to the ground and tried to defend himself from further attack by kicking out with his legs whilst screaming for help. He managed to get to his feet and Horton stabbed him again to the outside of the thigh, this time thrusting the knife all the way through. He then immediately pulled the knife out of the thigh of Nathanial . Serious injury was inflicted upon Nathanial by the stabs to the thigh, and there was profuse bleeding.
After Nathanial had been stabbed, Kur went up to him and removed the Philadelphia 76ers cap from his head, hence completing the robbery to which you and Kur have both pleaded guilty.[2] The two of you and Horton then ran back to the car, leaving the injured Hakiwai brothers bleeding on the ground.
[2]Nathanial was uncertain in his evidence at Horton’s trial whether the cap was removed after the first or second stab to the thigh. He believed it took place after the second stab.
Maaka died later that afternoon from the wound inflicted upon him. Nathanial sustained serious injury requiring life-saving surgical treatment and hospitalisation. Both the stabbing events occurred in close proximity to where you were standing.
Aftermath of your crimes
You, Kur and Horton arrived back at the car and you told NW to drive away, which she did, at speed, as it happened being followed by a nearby motorist who was able to obtain the registration number of the car. Horton was still in possession of his knife and Kur was holding onto the stolen cap. There was a good deal of yelling in the vehicle, and some condemnation of Horton’s actions. You were asked by one of the female occupants of the car why you had involved yourself in the events, and were observed to laugh in reply. You then directed the driver to St Albans. On the way there, Kur gave the stolen cap to you. Later the vehicle was driven to Sunshine. You and Kur departed the vehicle.
Investigation and arrest
The registration number of the RAV4 quickly led investigators to the father of NW who was the owner of the vehicle. NW was arrested on the evening of 28 September 2019 and provided Horton’s name to the police as the person responsible for the stabbings. She refused to provide the names of any of the other occupants of the car.
Horton was arrested on the afternoon of 8 October 2019. Following his arrest, police spoke again with NW. Now she provided the names of you and Kur to the police.
You were located and arrested by police at Watergardens Railway Station on 13 October 2019. You took part in a ‘no comment’ interview.
Chronology of events
You, Kur and Horton were all charged with common law murder, statutory murder, intentionally causing serious injury (‘ICSI’), intentionally causing serious injury in circumstances of gross violence, and armed robbery.[3] On 4 February 2020, you offered to plead guilty to robbery. This offer was rejected by the Crown.
[3]Notification of committal for trial dated 30 March 2020.
A committal mention for you, Kur and Horton proceeded on 27 April 2020. With the consent of all three of you, the matters were fast-tracked into this Court. Hearings under s 198B of the Criminal Procedure Act 2009 proceeded in this Court for four days commencing on 15 June 2020.
On 2 December 2020, an order was made severing the trials of you and Kur from the trial of Horton, and an order granting a judge alone trial was made in respect of the two of you.
Horton stood trial before a jury in March 2021, and on 30 March 2021, he was found guilty of manslaughter and ICSI.
On 19 April 2021, your matter resolved, the prosecution accepting your offer to plead guilty to robbery in satisfaction of the charges you had previously faced.
You pleaded guilty to the charge of robbery when arraigned before Lasry J on 22 April 2021. Before me, you admitted the matters contained in the criminal record filed in the Court.
Personal background and criminal history
You are now aged 19, having been born in South Sudan on 20 May 2002. You are the eldest in a sibship of six. Your family fled South Sudan when you were an infant. You spent time with your family in Egypt before arriving in Australia when you were four. You have few memories of life before arriving here. Your family lived in the western suburbs of Melbourne. You were educated at Catholic Regional College, dropping out of school part-way through year 10. Despite the interruptions to educational and other courses brought about by the COVID-19 pandemic, you have been able to participate in education programs while in custody in Malmsbury Youth Justice Centre (‘YJC’). You have completed the intermediate Victorian Certificate of Applied Learning, a traffic management course, and a responsible service of alcohol course.
You have a criminal history in the Children’s Court. On 13 August 2019, that is, only six weeks before the current crime, you were dealt with for charges including three charges of robbery, committing an indictable offence whilst on bail, and unlawful assault. The robberies were committed in company with other offenders upon random members of the community, in two of the cases, using public transport. Without conviction, you were placed on probation for a period of 12 months. Your current offending occurred in breach of that probation.
You also have matters pending in the Children’s Court. Some of these arose from alleged offending before the current crime. Others arose from alleged offending while in custody.
Seriousness of your crime
The prosecution contended that the robbery committed jointly by you and Kur was a serious example of that serious crime. The offending was described as brazen, occurring in a suburban street on a Saturday afternoon in full view of the public. Your victims, so it was asserted, were soft targets, being young, unarmed and unsuspecting. They were simply going about their business waiting for a bus to arrive. They were true innocents, so it was submitted, unknown to you. The offending was pre-meditated, in the sense that you and Kur openly discussed your plan to carry out a robbery while still in the RAV4. The victims were engaged in small talk to conceal your true intentions. The robbery did not appear to have been financially motivated, but rather, was pursued for the pure gratification of exerting force over others. The two of you acted together, intending to intimidate your young victims. Some physical force was used in the robbery against the two victims. Nathanial was punched to the mouth, causing some bleeding. He was also knocked to the ground by what he described as a ‘flying kick’.[4] As for Maaka, he was held in a sort of headlock.
[4]Trial transcript 120, 140, 322.
It was submitted by the Crown that the robbery was completed in callous circumstances, that is, after the two victims had been stabbed and fallen to the ground, which, to your knowledge, rendered them clearly injured and unable to defend themselves. It was only after Nathanial , your primary victim, had been stabbed seriously to the leg that his cap was removed from him. Although the two of you were not complicit in the stabbings, you took advantage of the situation to carry out your original plan.
It was further submitted by the Crown that although the robbery took place in a relatively short period of time, there was ample opportunity for you to desist. However, you persisted, despite the resistance shown by the victims and despite the obvious escalation of violence perpetrated by Horton.
Mr Marsh on your behalf submitted that the robbery to which you have pleaded guilty can be described as low level and opportunistic. In light of the tragic outcome of the overall event, care must be taken, he submitted, to recognise your limited role in the events. He conceded that there is some evidence of premeditation, that the motivation for the crime appears to have been ‘entirely capricious’,[5] that the robbery was completed after both victims had been stabbed and injured and therefore that there was a callous aspect to the crime. He acknowledged that offending of this nature is prevalent.
[5]Exhibit AM1 [6a].
As against these concessions, Mr Marsh submitted that the amount of planning involved was minimal, the offending was unsophisticated, no weapon was used, and this was not a case where the victims were especially vulnerable, by virtue of their age, size, gender or being vastly outnumbered.
In my view, yours was a serious crime, for many of the reasons noted by the prosecution. Even accepting the qualifications raised by Mr Marsh, the reality is that you and Kur selected young and innocent targets for your planned robbery. This was a senseless crime motivated, I believe, by nothing more than the selfish and concerning desire of you and Kur to exercise dominion over two young people you considered to be weaker than you. Your persistence in the crime in the face of the brave resistance of Maaka and Nathanial is troubling. As for your joint completion of the crime by the snatching of the cap from Nathanial by Kur, in circumstances where both he and his younger brother had been seriously injured by being stabbed in front of you, an act for which you and Kur, by your plea of guilty has accepted responsibility, that was especially callous and cowardly conduct. You were no more than two bullies doing whatever you felt like doing, with no regard for the feelings and welfare of others.
Plea of guilty
Mr Marsh submitted on your behalf that you are entitled to a substantial discount for your early offer to plead guilty. The significance of your plea offer should be seen in light of the current pandemic gripping the State and the impact on the system of trial by jury. You and Kur made a successful application for trial by judge alone, hence getting around the problem created by the fact that a trial with three accused would not be possible, enabling your trial to proceed more expeditiously and indeed permitting the trial of Horton to proceed when it did.
Mr Marsh submitted that you are entitled to the significant utilitarian benefits flowing from your early offer to plead guilty and your application for a judge alone trial. In respect of the importance of your plea offer in the current climate, he referred to the decision of Worboyes v The Queen.[6]
[6][2021] VSCA 169.
The prosecution accepted that you are entitled to the notional utilitarian benefit of your early offer to plead guilty. However, it was submitted by Ms Lenthall that there is no evidence beyond the bare plea of guilty of remorse or contrition for your offending. The evidence, including your behaviour in the vehicle shortly after your crime would indicate, if anything, a complete lack of remorse.
I am satisfied that you are entitled to the substantial utilitarian benefit attaching to your early offer to plead guilty. I do not, however, consider that there is any evidence that you are truly remorseful for your offending. You are not entitled to an additional reduction for the subjective features of your plea including remorse.
Delay
It was submitted on your behalf that had your early offer to plead guilty been accepted by the Crown, you would have been aged 17 and still within the jurisdiction of the Children’s Court, and the charge to which you have now pleaded guilty would have been appropriate for resolution in that jurisdiction. Instead, you ended up serving 562 days on remand in a youth justice centre with the charge of murder hanging over your head. In addition, you have spent a further 23 days in adult custody following the revocation of your bail. You have used your time in custody well, taking some steps towards rehabilitation by pursuing educational opportunities, and took further steps whilst on bail.
I accept that the delay in the disposition of the charge to which you have now pleaded guilty is a significant matter going in mitigation of sentence. I will take it into account accordingly.
Youth
Your age at the time of offending and being charged is a critical matter going in mitigation. It was submitted on your behalf that as a person who was 17 at the time of offending and being charged, you are properly to be viewed as a child for the purposes of sentencing, with the result that the provisions of the Children, Youth and Families Act 2005 (‘CYF Act’) apply to you. Mr Marsh submitted that there is no basis to conclude that this Court should do anything other than approach the passing of sentence in your case ‘as if the sentencing were exclusively governed by the provisions of the CYF Act’.[7] That would mean that the list of considerations contained in s 362 of the CYF Act would supplant the sentencing purposes set out in s 5 of the Sentencing Act 1991 (‘the Act’). General deterrence and denunciation would therefore be excluded as relevant sentencing principles.
[7]CNK v The Queen [2011] VSCA 228 [80].
The prosecution did not dispute the submissions made by Mr Marsh in this regard, and accepted that you should effectively be sentenced as a child.
Victim impact statements
22 victim impact statements were filed in Court and tendered in the overall plea hearing concerning you, Kur and Horton. The authors of these statements were the parents, siblings and other close relatives of Maaka and Nathanial , and the content of the statements principally covered the devastating impact upon the victims of the loss of Maaka and the serious attack upon Nathanial . I dealt fully with the heartbreaking contents of these statements in the sentence I passed upon Horton today.
Section 359 of the CYF Act sets out provision enabling a victim of an offence to make a victim impact statement to the Court for the purpose of determining sentence. The provision closely mirror the victim impact provisions in the Act.
The central focus of the victim impact statements was the searing loss brought about as a result of the knife attacks upon Maaka and Nathanial , for which attacks, of course, you are not responsible. It may be correct to say that most of the victims of the overall events are not victims of your offending, albeit that in their eyes, you and Kur are significantly to blame for the tragedy unleashed by Horton’s conduct. Nathanial Hakiwai, however, undoubtedly was a victim of your crime, as well as of Horton’s crimes. Nathanial described the initial approach of the two of you, when he was asked for what he described as his ‘crusty old work hat that was at least two years old at the time’. He described being struck by one of you and pushed to the ground, and then seeing Maaka standing there wrestling with another of you, helplessly. He then described the knife attacks upon first Maaka and then himself. He went on to say:
So I carry scars not only on the outside of my leg, but the inside also. The reason I bring all this up is because this was my reality, I lived this event by first being robbed by the two Africans and the third person involved Horton killing my brother. So basically, they both had parts that caused the death of my brother. You couldn’t have one without the other. Maaka wasn’t event robbed, they only took my hat, so Maaka lost his life for NOTHING!
Nathanial said in his victim impact statement that he blames himself for Maaka’s death. He should not do so. He was an innocent victim of you and Kur, and in the end, Horton. He also, clearly, blames you and Kur for the overall events. That apportionment of blame in his mind is, if I may say so, entirely understandable. Had the two of you not launched your criminal attack upon himself and his brother, Horton would not have done what he did.
It is clear that the pain and loss experienced by Nathanial as a direct result of the actions of you and Kur is indivisible from that flowing from the actions of Horton. The fact is, however, it is apparent from his statement that he has suffered loss from your actions, due in large part to his appreciation of the sheer senselessness of your robbery of him, and the part it played in the truly tragic events of that day.
Some aspects of the other victim impact statements may point to the same sort of loss flowing directly from your conduct.
Whilst taking care not to hold against you any injury, loss or damage for which you are not directly responsible, I will take into account in sentencing you the impact of your crime on its victims, including your primary victim, Nathanial.
Ultimate submissions on your behalf
Mr Marsh submitted that notwithstanding the fact that you have been charged in respect of two incidents which occurred while you have been detained on remand in the youth justice system, you have done well and taken some steps towards rehabilitation whilst in custody. The period of time you have spent on remand constitutes a significant proportion of your life to date, and has amounted to significant punishment of you. You have demonstrated an ability to act appropriately whilst in a pro-social environment. You retain the support of your parents and have displayed insight as to what will be required for you to stay out of trouble. He described your current offending as being the apogee of what was a fairly chaotic period in your life. The time on remand, he submitted, has served as a circuit breaker. Mr Marsh submitted that in light of the different regime under which you fall to be sentenced, you are entitled to a sentence disparate from that imposed upon Kur. He acknowledged that in sentencing you, there is the need for the Court to consider the protection of the community. Mr Marsh submitted that a youth supervision order of relatively short duration would be the appropriate sentence in your case, recognising the desirability of there being some supervision of you while you adjust to life in the community. Mr Sam Woollard, an advanced case manager at the Sunshine Youth Justice Office gave evidence during the plea hearing. He attested to your positive attitude when he was your supervision officer on bail earlier this year. He also indicated that Youth Justice would be willing to supervise you, and he would continue to be involved in the event of a youth supervision order being made.
The position of the Crown
The position of the Crown at the time of the filing of the outline of submissions was that a custodial sentence would be the only appropriate disposition for you, but that a combination of imprisonment with a community correction order would be open. In the end, however, having heard all of the submissions advanced on behalf of you, Ms Lenthall conceded that a youth supervision order would be an appropriate disposition.
Parity
Mr Marsh correctly submitted that in light of the different regimes under which you and Kur, fall to be sentenced, disparate sentences should be passed upon you. Ms Lenthall did not take issue with that proposition. In the end, I have considered it appropriate in the circumstances to impose a sentence upon you that is substantially less punitive than that I will impose on Kur.
Conclusion
You should be under no illusions. Your robbery of Nathanial Hakiwai was a senseless, cowardly and callous crime. You were no more than a bully who obtained gratification from targeting innocent, decent young people for your own selfish gratification. Your actions during the event and afterwards bespeak on your part a lack of normal human decency and respect for others. Even now, as I come to sentence you almost two years after the events, and with all that you have gone through in the interim, I am moved to note, again, that there is no evidence that you are remorseful for what you did. That is unfortunate and very concerning.
By virtue of the time you have spent on remand, you have been significantly punished for your conduct. I take that fact into account.
I have had regard to the matters to which I am required to have regard pursuant to s 362(1) of the CYF Act. One of those purposes to which regard is required to be had, if it is appropriate to do so, is the need to protect the community from your violent and wrongful acts. I do so have regard, and note that the sentence I will pass upon you is designed to facilitate your reintegration into the community and, it is to be hoped, your eventual rehabilitation.
Sentence
AM, for the robbery of Nathanial Hakiwai, you are convicted and released on a youth supervision order under s 387 of the Children, Youth and Families Act 2005 (Vic) for a period of 9 months. The order is subject to the conditions contained in the formal order of the Court made this day.
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