R v Anyang (Sentence)
[2011] VSC 263
•17 June 2011
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No. 1611 of 2009
| THE QUEEN |
| v |
| ATEM ANYANG |
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JUDGE: | WHELAN J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 May, 17 June 2011 | |
DATE OF SENTENCE: | 17 June 2011 | |
CASE MAY BE CITED AS: | R v Anyang (Sentence) | |
MEDIUM NEUTRAL CITATION: | [2011] VSC 263 | |
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CRIMINAL LAW – Sentence – Recklessly causing serious injury – Use of a knife on a public street – Motivated by jealousy - Plea of guilty – No priors - Sentenced to three years’ imprisonment with a non-parole period of two years.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr M Lincoln | Office of Public Prosecutions |
| For the Accused | Mr D Dann | C Marshall & Associates |
HIS HONOUR:
On 26 February 2009 at about 1.00 pm, Joseph Wach was walking along Brunswick Road, Brunswick in the direction of Sydney Road. He was accompanied by a woman, Abul Akol, who is your wife.
Mr Wach had recently arrived from America and had come to Australia to meet Ms Akol. He had known her in Africa, before she married you. All three of you spent your youth in Africa. Mr Wach and Ms Akol had booked into the Parkville Apartments in Brunswick Road at about midday intending to stay there for some seven days. Once they had deposited their bags, they left and walked towards Sydney Road.
At around the same time, you arrived at the apartments, parked your car, and went to their room. You were looking for your wife and believed that she was “cheating” on you.
Failing to locate your wife, you returned to your vehicle and drove down Brunswick Road.
After driving a short distance, you saw Mr Wach. You screeched to a halt, leaving skid marks and stopping at an angle to the kerb. You got out of the car and moved quickly towards Mr Wach. A struggle ensued between the two of you. You were in possession of a knife when the struggle commenced. During the fight the two of you wrestled for control of the knife. As the fight progressed you thrust the blade into the neck of Mr Wach to a depth of some 20 cm inflicting a serious injury. That injury was caused by you in circumstances where you foresaw the probability that serious injury would be caused. During the struggle Mr Wach received further cuts and wounds.
Mr Wach was able to escape from the fight and fled. He was pursued by you. He escaped into a motor vehicle being driven by a woman who happened to be passing named Lynn Brooks.
A short while later the police and an ambulance attended. Mr Wach was conveyed to the Royal Melbourne Hospital and you were taken to the Brunswick Police Station.
Later that day you were interviewed by police. In the course of that interview you stated that you had had a feeling that your wife had been cheating on you and that you had attended the apartments looking for her. You said that you had spoken to Mr Wach some time earlier on your wife’s mobile phone and that he had insulted you. You said that you had seen Mr Wach in the street and stopped your car, that you got out and a fight had commenced, and that during the fight you had stabbed Mr Wach.
You were charged with attempted murder, intentionally causing serious injury and recklessly causing serious injury, in relation to Mr Wach; and you were also charged with assaulting Ms Akol. You pleaded not guilty to all of those charges. You were acquitted by a jury of the charges of attempted murder of Mr Wach and assault on Ms Akol. The jury could not agree on the charges of intentionally causing serious injury and recklessly causing serious injury, which were alternatives, and I accordingly discharged them.
You had offered to plead guilty to a count of recklessly causing serious injury in late 2010. Whilst awaiting re-trial the prosecution agreed to accept that plea. Upon you pleading guilty to the charge of recklessly causing serious injury I directed entry of an acquittal on the charge of intentionally causing serious injury. Your counsel and counsel for the prosecution agreed upon a factual basis for the plea, which is to the effect of the narrative I have just set out and which is in accordance with the evidence led at your trial.
Without departing from that factual narrative, there are some additional factual matters which are relevant.
You were separated from your wife at the time of this incident. I say that notwithstanding that your wife in her evidence maintained she had gone back to you. What she said in this respect was inconsistent with prior statements she had made and was inconsistent with your record of interview and your evidence at the trial. There is no doubt that the two of you had separated in 2008. She now says she went back to live with you in December 2008. I reject that. I find that what you said in your record of interview is essentially correct, namely that at the time of the offence you were not then living together but that you had been seeing each other.
In the evidence you gave at your trial and in your police interview you said that you knew your wife was at the Parkville Apartments because you had found a business card for those apartments in your car after your wife had borrowed it. This caused you to wonder what was going on and to suspect her of “cheating”, and of “cheating” with the person you had previously argued with on her phone. You rang the apartments the night before you went there and were told she had made a booking.
You told the police that at the time of your confrontation with Mr Wach you were totally out of your mind. You told police twice in your record of interview that Mr Wach had ruined your life. I reject the explanation for those statements which you gave in evidence at your trial, which was that you were referring to your life being ruined because you were in police custody. I find you were expressing a belief which you held because of Mr Wach’s relationship with Ms Akol.
Your presence on Brunswick Road on that day was in contravention of an intervention order which had been made on the application of your wife. In that application she had alleged violence and threats of violence by you. An interim order had been made on 27 November 2008 in your absence and a further interim order was made on 4 December 2008 in your presence. You never agreed to those orders and I was told on the plea that no contested hearing was ever held.
Evidence concerning the intervention orders was not led before the jury, but I heard evidence about them from your wife on a hearing in the absence of the jury and you said things about the orders in parts of your police interview which were not played to the jury. Your wife resiled from the allegations she had made against you. She did so in terms which were, in my view, evasive and unsatisfactory. You and your wife are now living together again. As I observed in the course of the plea hearing, my assessment of the position is that your wife was doing her level best to assist you in the trial. I do not give her oral evidence on these matters any credence.
In your record of interview you maintained that your wife had told you before the incident with Mr Wach that the intervention order had been withdrawn.
The circumstances which led to the making of the intervention orders, and what your wife said to you about the orders, are matters I cannot determine. You chose not to give or call further evidence about these orders on the plea.
The only findings which I make about the intervention orders, in addition to those already referred to, are these:
(a) Your presence on Brunswick Road in the vicinity of your wife was in contravention of an interim intervention order which had been granted in your presence but without a contested hearing.
(b) Notwithstanding the interim intervention order, your wife had agreed to see you and had been seeing you voluntarily.
(c) The occasion on Brunswick Road was not one in which your wife had agreed to see you, and your presence at the Parkville Apartments and on Brunswick Road that day was unwelcome.
These circumstances are relevant in assessing the seriousness of the offence and in assessing your moral culpability. They do render the offence more serious, although not to the extent to which they often might. Given the fact that your wife had been seeing you voluntarily, your contravention was not what could be described as a flagrant breach.[1]
[1]See by way of contrast, R v Pham [2005] VSCA 57.
A contentious issue at your trial concerned how the knife came to be at the location of the fight. Mr Wach said you had the knife in your hand when you got out of the car. You maintained in your record of interview and in your evidence at the trial that you first saw the knife on the ground. You told police Ms Akol had a knife in her handbag.
Your counsel and the prosecution counsel have agreed that the issue is to be approached on the basis that you had the knife when the struggle commenced but that no further finding adverse to you should be made. In the course of the plea counsel for the prosecution submitted that this aspect of the matter might be approached in a manner similar to that of the so-called “glassing” cases,[2] and your counsel said he would not argue with that approach.
[2]Counsel for the prosecution referred to Winch v The Queen [2010] VSCA 141 (“Winch”).
The “glassing” cases are of some relevance here because they concern serious injuries inflicted using a dangerous object as a weapon, in circumstances where the initial possession of the object is not in itself a culpable feature of the offence.[3]
[3]Otherwise, typical “glassing” cases have characteristics not present here, being the association with licensed premises, the absence of any significant motive or grievance, and intoxication of the offender.
Having heard the evidence at trial concerning the knife, I consider that the approach agreed between your counsel and the prosecution counsel is appropriate. I proceed on that basis.
Mr Wach suffered significant injury as a result of his stab wounds. He is lucky to be alive. His neck injury required emergency surgery. He has been left with significant scarring. A victim impact statement from Mr Wach was tendered on the plea. It was read by the prosecutor. It speaks of the significant physical and emotional trauma he suffered and continues to suffer as a result of your assault.
You are now 25 years of age. You were 23 at the time of the offence. You were born in the Sudan and I was told on your plea that your father was killed by Arab militia. You were the youngest of six children. You have three surviving siblings. You fled the Sudan with your family after your father’s death and went to Kenya. You were then 8 or 9 years of age. You were educated in Kenya until you came to Australia on a humanitarian visa at the age of 16. Your mother died in Kenya in 2008. You initially lived in Sydney, then moved to Tasmania, and then to Melbourne. You have undertaken but not completed tertiary studies. You have been consistently employed, and a letter confirming that consistent employment was tendered on the plea.
Your marriage to Ms Akol was arranged in accordance with the traditions of the Dinka people and involved the transfer of property between your respective relatives in Africa and in Australia.
You were held in custody from the time of the incident until you were granted bail in this Court on 26 June 2009.
You have no prior convictions and I was told on the plea that you have been in no trouble with police since the incident. I was told that you have no problems with drugs or alcohol and that you are an active participant in your community and in your church. Testimonials which speak highly of you were tendered on the plea, as was a report by the forensic psychologist Mr Jeffrey Cummins. Mr Cummins assessed you as being of normal average intelligence without any psychological disorder. Mr Cummins does not attribute your offending behaviour to cultural factors. As I observed in the course of the plea hearing, it is a shortcoming in Mr Cummins’ report that he is apparently ignorant of the intervention order proceedings.
The matters put in mitigation on your behalf are the following:
(1)You pleaded guilty, thereby avoiding a re-trial with all the costs and inconveniences which that would necessarily involve.
(2)You should be treated as having pleaded guilty at the earliest possible opportunity, given the offer you had previously made and the fact that that offer was not accepted by the prosecution until after your acquittal on the attempted murder charge and the jury’s inability to agree on the other charges relating to Mr Wach.
(3)You have no prior convictions.
(4)You are a person of good character. You are well regarded in your community.
(5)There has now been a delay of over two years since the offence. You have spent four months of that period on remand and have spent the balance of it subject to bail conditions. You were returned to custody for a short period on remand during your trial. Throughout the whole period you faced the very serious charge of attempted murder, of which you were subsequently acquitted.
(6)You have always been in employment.
(7)Your prospects of rehabilitation are very good given your comparative youth, your absence of prior convictions, the significant support which you have in the community, and your good employment record.
In relation to the circumstances of the offence itself it was submitted that you must be given the full benefit of your acquittal on the charge of attempted murder and the directed acquittal on the charge of intentionally causing serious injury.
All of the submissions made in mitigation, as set out above, are in my view matters properly to be taken into account in your favour, and I do so.
I need to say something about Ms Brooks. Ms Brooks is a district nurse who just happened to be driving along the street when she saw you chasing a blood drenched Joseph Wach down Brunswick Road. She intervened by stopping her car and allowing him in. Given the scene which confronted her, this was a very brave and community minded thing to do. She is to be commended for it.
Your counsel referred to sentencing statistics and also relied upon what was said to be a recent similar case.[4] It was submitted on your behalf that a disposition not requiring you to serve further time in custody would be appropriate, particularly given that you are still relatively youthful.
[4]The case is R v Chiol [2010] VSC 512. It is rarely of any utility to directly compare cases. That case and this have some features in common and some features which are different. The particular factors which led the sentencing judge to conclude a suspended sentence was appropriate there (see at [30]) are not relevantly the same here.
On behalf of the prosecution it was submitted that this offence was a serious instance of a very serious crime, the maximum penalty for which is 15 years’ imprisonment. Counsel for the prosecution submitted that an appropriate range of sentence was between 3 and 4 years’ imprisonment with a non-parole period of between 1½ years and 3 years. Your counsel submitted that the proffered range was far too high and in particular that the starting point of the prosecution’s range is double the median sentence according to the published statistics.
I have considered current sentencing practices.[5]
[5]I have reviewed Sentencing Snapshot No 94, the relevant case collection section of the Victorian Sentencing Manual, and the “glassing” cases referred to in Winch.
The time you have already spent in custody and which is to be taken into account as pre-sentence detention is 130 days.
This was a serious assault, with a knife, on a busy public road, in the daytime. Your presence on Brunswick Road and the confrontation with Mr Wach occurred because of jealousy in relation to your wife from whom you were then separated. It is not a case where a disposition involving no further period of incarceration would be appropriate. Your age, your guilty plea, your absence of prior convictions, your previous good character and work history, and your prospects of rehabilitation are important mitigating factors.
For the offence of recklessly causing serious injury I sentence you to three years’ imprisonment and I fix a non-parole period of two years.
If you had not pleaded guilty I would have sentenced you to four years’ imprisonment and fixed a non-parole period of three years.
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