R v Athuai
[2007] VSCA 2
•30 January 2007
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 224 of 2005
| THE QUEEN |
| v. |
| BOLLUS ANGELO ATHUAI |
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JUDGES: | BUCHANAN, VINCENT and NETTLE, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 30 January 2007 | |
DATE OF JUDGMENT: | 30 January 2007 | |
MEDIUM NEUTRAL CITATION: | [2007] VSCA 2 | |
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Criminal law – Sentencing – Murder – Young offender – Prospects of rehabilitation – Sentence of 22 years’ imprisonment with a minimum term of 17 years’ imprisonment manifestly excessive.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr C.J. Ryan, SC | Ms A. Cannon, Solicitor for Public Prosecutions |
| For the Appellant | Mr C.B. Boyce | Victoria Legal Aid |
BUCHANAN, JA:
The appellant was born in February 1986 in Sudan. His family fled to Khartoum to escape the civil war raging there. The family was destitute and experienced discrimination. In 1987 the appellant and his family came to Australia as refugees. After living in Queensland, in 2003 the family came to Melbourne.
In the early hours of 25 September 2003, when the appellant was aged 17 years, he and two friends were in the city. Hani Jaber (“the deceased”), who was also 17 years old and was in the city with his friends, encountered the appellant and his group on the bank of the river next to the Flinders Street station. The deceased and his friends approached the appellant's group in a friendly fashion but were rebuffed, and the deceased and a companion crossed the footbridge to the south bank of the river and walked in the direction of Crown Casino. The appellant, with two others, ran across the footbridge, approached the deceased and his friend and commenced to attack them. One of the appellant's companions punched one of the deceased's group to the ground and jumped on him. The appellant and one of his friends attacked the deceased. In the course of the struggle the deceased's tracksuit top and T-shirt were wrested from him. The appellant was significantly taller and stronger than the deceased. The fighting group reached the steps of a building. The appellant mounted the steps and produced a knife, which he hid behind his back. With the advantage of his superior height and reach, the appellant suddenly produced the knife and stabbed the deceased, who fell to the ground.
While he was on the ground the appellant forcefully stabbed him at least three times in the chest, killing him. One of the deceased's companions observed that the appellant was smiling when he stabbed the deceased as he was on the ground and afterwards looked at the deceased's companion and smiled again. A pathologist noted three wounds to the side of the deceased's face, two stab wounds through his back, one of which was 205 millimetres deep and pierced the deceased's aorta, and three stab wounds to the chest, one to the right-hand side penetrating the deceased's heart and causing injury to a rib at the back of his body, and the other two wounds penetrating both lungs and damaging the mammary artery. After stabbing the deceased, the appellant left. The deceased died in the arms of his friend.
The appellant was arraigned in the Supreme Court and pleaded not guilty to one count of murder. After a trial, the appellant was found guilty and in due course was sentenced to be imprisoned for a term of 22 years, with a minimum term of 17 years. The appellant was granted leave to appeal by a judge of this Court, who said that he granted the application "because the applicant was aged only 17½ when he committed the murder".
The grounds of appeal which have been pressed are as follows:
"1.The sentence of 22 years with a minimum term of 17 years insufficiently reflects the appellant's youth and prospects of rehabilitation.
2.The learned sentencing judge placed too much weight on the fact that the appellant was on bail at the time of the offending.
4.The sentence is manifestly excessive.
5.The learned sentencing judge erred in finding that the appellant displayed manifest pleasure while stabbing the victim."
The first and fourth grounds require consideration of the personal circumstances of the appellant. As I have said, he was born in Sudan. His early life on the continent of Africa was difficult. The appellant and his family were poverty-stricken and subject to racial discrimination. When the appellant attended secondary school in Brisbane he suffered racist taunting and bullying by other boys. On one occasion he was beaten unconscious. The appellant's treatment caused him to seek the company and protection of other Sudanese boys. Shortly after the appellant's family arrived in Melbourne, his older brother was killed in a motor car accident, in which another brother was severely injured. The appellant's father went to Warrnambool to work, leaving the appellant's mother to support the family by herself. The appellant's mother was diagnosed with breast cancer and underwent surgery. Although the appellant was unable to attend school because of the time of the year at which he arrived in Melbourne, he did attend a learning programme for Sudanese youths.
The sentencing judge made the following relevant findings:
• The appellant had no cause to attack the deceased.
• He did not act in defence of himself or others and was not provoked.
• The attack was premeditated.
• When the appellant and his friends ran across the bridge they intended to inflict violence on the deceased and his companions.
• The appellant formulated the intention to stab the deceased while he was wrestling with the deceased and at a short and distinct time before he did so.
• The use of the knife was not an action committed on the spur of the moment but the product of calculation and some forethought.
• The appellant and his companion were larger and stronger than the deceased.
• The appellant used a weapon while the deceased was unarmed, and used the weapon with a maximum of surprise and ferocity.
• The repeated blows inflicted upon the deceased were accompanied by significant force.
• Five days before the murder, the appellant had been searched by a policeman, who found a large carving knife secreted in the appellant's pocket. The policeman confiscated the knife and warned the appellant that it was illegal to carry a knife.
Ground 2 arises from the fact that at the time of the commission of this offence the appellant was on bail after being charged with the offences of armed robbery and assault occasioning actual bodily harm. It was alleged that in the robbery the appellant used a knife. The sentencing judge said:
"You have not been tried on any of those offences. Accordingly, I do not take the facts alleged against you into account. However, it is the fact that you were on bail at the time of the murder in September 2003, which is of particular concern. It indicates a blatant disregard by you for the system of law under which bail was granted to you. It suggests that you have small regard for the law and little attention of obeying its command. To that extent, and in that way, the fact that you committed this murder while on bail does undermine, to some extent at least, any confidence in your ultimate rehabilitation.
Counsel for the appellant submitted that the sentencing judge's finding should not have been made with respect to a person who was not a mature adult but a Sudanese youth in an alien culture, who had been raised in circumstances of extreme deprivation and violence. He also submitted that, by rehearsing the facts and canvassing them in the course of the plea, the sentencing judge appears to have taken those facts into account.
In my opinion the ground has not been established. The appellant's youth and antecedents did not prevent him understanding the significance of being formally charged and admitted to bail. In my opinion his Honour was entitled to conclude that the appellant chose not to treat the law with any respect. That circumstance had limited significance having regard to the appellant's youth and background, but the sentencing judge said that he was not sentencing the appellant for offences of which he had not been convicted, and I do not agree that the fact that he referred to these matters was an error, for they were of some significance.
With respect to ground 5, when the attack was launched, the appellant was not in fear of the deceased, he was not angry with the deceased, and he stood to gain no material advantage from killing the deceased. No motive for the murder was advanced by counsel who appeared for the appellant at the plea. Notwithstanding that the deceased was an Arab immigrant youth, there is no suggestion that a motive for the killing is to be found in the background of the appellant and his victim. There was direct evidence that the appellant was smiling when he stabbed the deceased. His smile was not the product of amusement. In my opinion, the sentencing judge properly concluded that the appellant derived pleasure from his attack upon the deceased.
Counsel for the appellant placed his client's youth at the forefront of his submissions with respect to grounds 1 and 4. While the crime itself was serious indeed, attended by circumstances which were disturbing, the appellant was a teenager and the product of a culture of violence and deprivation. The appellant's youth should have rendered his rehabilitation a consideration of the first importance.[1] In fact, the sentencing judge did not find that the appellant was irredeemable. He said that he had been a diligent student, well thought of by those who conducted the learning programme upon which he was engaged before the offence, and had undertaken courses while on remand; so that his Honour was able to say that there were "some grounds for confidence for your rehabilitation", although his Honour also expressed some reservations as to the appellant's prospects of rehabilitation.
[1]See R v Mills [1998] 4 V.R. 235 at 241, per Batt, J.A.
In my opinion the sentence imposed upon the appellant failed to reflect the appellant's youth and its consequences. Those matters seem to have been swamped by the circumstances of the offence, and in my view that constituted error. Accordingly, in my opinion the sentence imposed below should be set aside. I would re-sentence the appellant to be imprisoned for a term of 18 years and fix a minimum term of 14 years before the appellant is to be eligible for parole.
VINCENT, J.A.:
I agree.
NETTLE, J.A.:
I also agree.
BUCHANAN, J.A.:
The orders of the Court will be as follows:
The appeal is allowed.
The sentence passed below is set aside and in lieu thereof the appellant is sentenced to be imprisoned for a term of 18 years.
A non-parole period of 14 years is fixed.
It is declared that the period of 1209 days is to be reckoned as already served under the sentence and it is ordered that the fact that that declaration was made and its details be noted in the records of the Court.
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