R v Athuai
[2005] VSC 252
•22 July 2005
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1503 of 2004
| THE QUEEN |
| v |
| BOLLUS ANGELO ATHUAI |
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JUDGE: | KAYE J. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 15 July 2005 | |
DATE OF SENTENCE: | 22 July 2005 | |
CASE MAY BE CITED AS: | R v Athuai | |
MEDIUM NEUTRAL CITATION: | [2005] VSC 252 | |
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CRIMINAL LAW – Sentence – Murder – Vicious stabbing of innocent victim aged 17 years - Committed while on bail for other violent offences - Youth of prisoner – Prospects of rehabilitation.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr M. Gamble | Solicitor for Office of Public Prosecutions |
| For the Accused | Dr G. Lyon | Victoria Legal Aid |
HIS HONOUR:
Bollus Angelo Athuai, you have been found guilty by the jury empanelled upon your trial in this Court of the murder of Hani Ghaleb Jaber on 25 September 2003.
At your trial the only issue was whether you were the person who fatally stabbed the deceased man. Otherwise the facts surrounding the killing of Jaber were not in dispute. By its verdict the jury was satisfied beyond reasonable doubt that it was you who attacked and stabbed Hani Jaber, and that you did so with the intention to kill him or, at the very least, cause him really serious injury.
At the time of the crime you were 17 and one half years of age, having been born on 12 February 1986. On the evening of 24 September 2003 you were in company with two friends, William Angok and Birag Kuat. At about midnight the three of you were in Bourke Street, Melbourne. There you met up with some other youths. From there you proceeded through the underpass under the Flinders Street Railway Station from Elizabeth Street to a seat on the north bank of the Yarra River.
At the time of his death Hani Jaber was also 17 years of age. On that evening he, in company with his two friends Hassan Hussain and Alexandra Berry, had visited the City. From there they decided to proceed to Crown Casino on the south bank of the Yarra River. They also walked through the underpass under the Flinders Street Railway Station. There they saw your group of companions at the seat on the north bank of the river. Jaber and Hussain approached your group and spoke with you. Their approach to your group was amicable. However, their friendly overtures were rebuffed. One of the members of your group asked Hussain if he had a knife, and intimated that they should indulge in a knife fight. Hani Jaber, sensing that the situation was amiss, suggested to his friends that they continue on to the south bank of the river. Accordingly, Jaber, Hussain and Alexandra Berry crossed the footbridge to the south bank, and then turned west, walking in the direction of the Crown Casino. At that stage you, in company with Angok and Kuat, ran across the footbridge, approached the deceased and his friends, accosted them, and then commenced to attack them. Kuat punched Hussain to the ground and jumped onto him. At about the same time Angok and you commenced to attack and wrestle with Hani Jaber. That struggle commenced on the southern side of the promenade, and then moved across to the steps in front of the Esso building on the northern side of the promenade. In the course of the struggle the deceased man’s tracksuit top, and his two T-shirts, were wrested off him.
You were significantly taller and stronger than the deceased man, who was only 167cms tall and 58kgs in weight. Notwithstanding that difference in size, and despite the fact that there were two of you onto one, nonetheless the deceased man was able to keep his feet. When you reached the steps of the Esso building, you mounted those steps. You produced a knife, at first concealing it from your unsuspecting victim by holding it behind your back. With the advantage of your superior height and reach, and with the added advantage of surprise, you then stabbed the deceased man. He fell to the ground. At that stage Angok dissociated himself from the struggle and proceeded to decamp. You lent over the fallen Jaber, and forcefully stabbed him at least three times in the chest, fatally wounding him. You then stood up and commenced to depart. You turned around, returned to the prostrate body of your victim, and collected your yellow cap. You then departed in company with Kuat. At the time that you stabbed Jaber when he was on the ground you were observed to be smiling. When you returned to collect your cap, Alexandra Berry was standing next to the deceased man. You looked at her and smiled again.
The deceased man had three wounds to the left‑hand side of his face. The pathologist’s evidence was that they could have been inflicted by a minimum of one and a maximum of three distinct applications of a sharp force. He also had two stab wounds to the left upper back, one of which was 205 mms deep and pierced the deceased man’s aorta. There were three stab wounds to the chest. One, to the right‑hand side of the chest, penetrated the deceased man’s heart, and caused injury to the ninth rib at the back of his body. The other two knife wounds were to the left‑hand side of the chest. In addition to the injury to his heart and aorta, the stab wounds penetrated both lungs, and damaged the mammary artery. A recitation of those injuries is sufficient to show that the stab wounds were vicious, and were inflicted in the vicinity of vital organs. I have no doubt that you inflicted them with the intention of killing your helpless victim.
Having inflicted those wounds you then left Hani Jaber to his fate. Hassan Hussain and others desperately tried to save his life. He died in the arms of his friend Hassan Hussain before the ambulance could arrive.
The short summary which I have given of the circumstances in which you murdered the deceased man is sufficient to demonstrate that there are a number of factors which make this a particularly serious instance of the crime of murder and which I must take into account in determining the sentence which I am to pass on you. Those factors include the following:
(1)You had no cause to attack the deceased man, let alone to stab him. There was no suggestion in the evidence that you acted in defence of yourself or your friends, or that the deceased man or his friends had provoked you at all.
(2)The attack by you and your two colleagues on the deceased man and Hassan Hussain was premeditated. You and your friends ran across the bridge, and then immediately accosted and attacked them. I have no doubt that when you made your way across that bridge you and your friends were each bent on inflicting violence on the deceased man and his friend.
(3)Although I do not find that you formed the intention to stab your victim when you ran across the bridge, the evidence does clearly establish that you did formulate that intention, while you were wrestling with Jaber, a short but distinct time before you stabbed him. Nothing had occurred before the incident, or during the incident, which provoked you, or which gave you any occasion to use the knife. As I have stated you mounted the steps, initially concealed the knife behind your back, and then struck at the most opportune moment for you to inflict the maximum amount of injury to your hapless victim. All of those facts lead to but one conclusion, namely, that the use by you of the knife was not an act committed on the spur of the moment. Rather the use by you of the knife was calculated and, to that extent, the product of some forethought.
(4)Your attack on the deceased man was particularly cowardly. You had a superior advantage in height and reach. Both you and Angok were larger and stronger than the deceased man. You used a weapon. Your victim was unarmed. You used that weapon with the maximum of surprise and ferocity, depriving your victim of any opportunity at all to defend himself. It is not surprising that the pathologist did not find one single defensive wound on the body of the deceased man. He did not get any opportunity to raise his hands in self-defence, let alone to strike out at you.
(5)You struck the deceased man repeatedly with the knife. The blows were inflicted with significant force. Three were aimed, at close range, at his chest.
(6)You displayed manifest pleasure while stabbing your young victim. Your frame of mind as you did so is a frightening insight into what must have motivated you. Your attack on him was as callous as it was vicious.
(7)Your victim was an innocent young adolescent on the verge of adult life. He and his friends were doing no more than what any citizen of this land is entitled to do, namely, enjoying an evening together in peaceful recreation. You have deprived that decent, innocent man of his right to life.
A further relevant circumstance in this case concerns the fact that you actually had a knife in your possession on that night at all. Five days previously, you had been searched by Senior Constable Ure of Footscray Police, and found to possess a large carving knife, secreted in your pocket. He had taken that knife off you, and warned you that it was illegal to carry a knife. Thus on the evening in question you knew full well that your possession of the knife was unlawful.
Your brazen and totally unjustified attack on the deceased man and his two companions going about their lawful business was utterly unacceptable. Your use of a knife was a contravention of a basic standard and value of our society. You took the life of an innocent and decent young man. Your conduct violated the most fundamental norm of civilised behaviour.
The crime of murder is the most serious crime known to our system of justice, involving as it does the intentional and unjustified taking of the life of another. In this case the matters to which I have just referred lead necessarily to the conclusion that your murder of Hani Jaber is a particularly serious instance of that crime.
The use, particularly by youths, of knives and similar weapons is all too prevalent in recent times. There is a need in a case such as this for the Court to impose a severe punishment to make it absolutely clear to the rest of the community that those who behave in the manner in which you did will properly forfeit their right to be part of our community for a substantial part of their own lives. Equally there is a need for the Court to ensure that the sentence properly expresses the Court’s and the community’s denunciation of your crime, and vindicates the value and sanctity of each human life, in particular that of the victim Hani Jaber.
As a result of your actions, a young man, on the threshold of adulthood, has lost his life. In addition, there were other victims of your crime. I have read the victim impact statements of the parents and sister of Hani Jaber, and also of his two friends, Hassan Hussain and Alexandra Berry, which were tendered on your plea. You have deprived Hani Jaber’s parents and his sister of their much beloved son and brother. The victim impact statements are eloquent evidence of the anguish, grief and loss which your actions have caused. The lives of those close to Hani Jaber have been shattered by your callous actions. Such an effect on the family of a deceased is an inevitable consequence of the type of brutal and senseless killing which occurred in this case.
In addition, Hani Jaber’s two close friends, Hassan Hussain and Alexandra Berry, witnessed his savage killing and death at close quarters. At a young age they have been severely traumatised by your actions. I doubt that either of them will ever forget the dreadful circumstances of that night. They too are, in a very real sense, innocent victims of your criminal conduct.
I now turn to consider matters relating to your background. You were born in February 1986 in Sudan. You come from a large family. In your early childhood Sudan was wracked by civil war. Your family was forced to flee their village and take refuge in Khartoum. There the family experienced considerable hardship and lived in a state of constant fear. During that time your father fled to Libya. When you were eight years of age your mother moved your siblings and you to Cairo. There life was also difficult. You lived in a state of destitution, and were subjected to discrimination on the basis of your race. Ultimately, in 1997, your family came to Australia through the Humanitarian Refugee Programme, arriving in this country in December 1997. At first you resided in Townsville, where you attended primary school. Your mother describes the life of your family in Townsville as “good”. People were friendly and you commenced to learn English at school. However, your family then moved to Brisbane. There you attended secondary school. Unfortunately you were subjected to racist taunting and bullying by the other boys. From time to time they were violent towards you. On one occasion you were beaten unconscious.
It was during that time that you gravitated to the company of other Sudanese boys. You did so in order to evade the racism which had been directed towards you at school. Unfortunately the Sudanese boys with whom you associated were undesirable, and your mother described them as trouble makers.
Ultimately your family decided to come to Melbourne in 2003. However, shortly after your move, tragedy struck your family. Your elder brother, Francis, was killed in a motorcar accident. Another brother, Franco, was in the same vehicle. As a result he suffered a psychiatric reaction which required him to undergo a period of hospitalisation followed by home care.
The problems besetting your family did not cease. Your father left to work in Warrnambool, leaving your mother to support the family on her own. Earlier this year your mother was diagnosed with breast cancer, and she underwent radical surgery. Her operation was followed by a period of medical complications.
When you moved to Melbourne the school year had already commenced. I was told on your plea that, as a result, it was not possible for you to be fitted into a school. However, and to your credit, you attended the Sudanese-Australian Integrated Learning Programme, where you undertook weekly English classes, and participated in drama and soccer classes.
The short summary which I have given concerning your background reveals the following mitigating circumstances which I take into account in this case, namely:
(1)Your early years in Sudan and Egypt were difficult. Your family lived under threat, and was subjected to discrimination. You knew little stability during that important part of your childhood.
(2)Upon your arrival in Australia, and through no fault of your own, you have not been able to achieve the stability which important for a young person during his adolescent years. You were subjected to racial discrimination and bullying in Queensland. Since your move to Melbourne your family has suffered a series of tragedies. In the meantime your father has been away for considerable periods of time.
The most significant mitigating factor in your case lies in your youth. It was correctly recognised on your plea that, in a case of such gravity, your youth, and questions of rehabilitation, do not predominate against factors such as the need for general deterrence and appropriate denunciation by the Court of your wrong doing. Nonetheless your youth is a relevant factor. In particular it does, to some degree, mitigate the seriousness of your offence. Further, because of your youth, society has an interest in your being rehabilitated during the term of your imprisonment, so that, upon your eventual release, you do not offend again. To that extent your youth constrains me to impose a sentence which is significantly less severe than it might otherwise have been, if it were not for your youth.
Since your arrest, you have been held in custody at Port Phillip Prison. During that time you have been in the youth unit at that prison. There you have successfully completed a number of courses, in respect of which certificates were tendered to me on your plea. Significantly they include courses relating to offending behaviour, anger management, communication skills and consequential thinking. It stands to your credit that you have undertaken those courses. While you have been in custody you have received regular visits from your family who, I observe, were frequently in court to support you during your trial.
It was submitted on your behalf that you have demonstrated that you have prospects of rehabilitation. First, the testimonial of the Sudanese-Australian Integrated Learning Programme shows that, before your offence, you were a diligent student at that programme who was well thought of by those who conducted it. Secondly, the courses which you have undertaken while on remand, particularly relating to your behaviour, do, to some extent at least, give some grounds for confidence for your rehabilitation.
On the other hand, two circumstances must be taken into account in considering your prospects of rehabilitation. First, at the time at which you committed the murder of Hani Jaber, you were already on bail on charges of offending in Queensland. In particular, in November 2002, you were arrested and charged with two separate offences of assault occasioning actual bodily harm alleged to have been committed, respectively, in September 2002, and on 13 November 2002. You were bailed on each of those charges. One month later you were again arrested and charged with the offence of armed robbery. That charge involved an allegation that you had used a knife in the course of the robbery. You were bailed on that charge. On 1 May 2003 you were committed for trial for the offence of assault occasioning actual bodily harm alleged to have been committed in September 2002, and on the charge of armed robbery. Thus, at the time of the commission by you of the murder of Hani Jaber you were on bail for two serious offences, one of which involved an allegation that you had used a knife. 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 intention of obeying its commands. 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.
In addition, as I have found, the murder by you of Hani Jaber was committed in circumstances which were particularly callous. Your demeanour during the killing, the defenceless nature of the victim, the savagery of the blows inflicted by you, and the entire lack of any reason for you to attack him, cause me to have some reservations in evaluating your prospects of rehabilitation.
Thus, I take into account your youth as a mitigating circumstance, and in particular the fact that, because of your youth, it is important that the sentence not be so great as to destroy any prospects of your ultimate rehabilitation. As against that I do take into account the reservations which I have about your current state of rehabilitation, and about your prospects of future rehabilitation.
As I have stated, the offence upon which you have been convicted and upon which I must sentence you, is very serious. It was committed in circumstances of significant gravity. The sentence which I pass on you must reflect adequately the community’s abhorrence of your crime, and act as a deterrent to others from committing similar offences. In addition it must be sufficiently severe in order to deter you personally from further offending. On the other hand, I take into account the mitigating circumstances to which I have referred, and in particular your youth. Taking those matters into account I sentence you as follows. I sentence you to 22 years’ imprisonment. I fix a period of 17 years during which you are not eligible to be released on parole. I declare, pursuant to s.18 of the Sentencing Act, the period of 651 days to be the period reckoned as already served under the sentence, and I shall cause that declaration to be noted in the records of the Court.
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