R v Awooch
[2020] ACTSC 295
•3 November 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Awooch |
Citation: | [2020] ACTSC 295 |
Hearing Date: | 3 July 2020; 27 October 2020 |
DecisionDate: | 3 November 2020 |
Before: | Robinson AJ |
Decision: | See [31] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – grievous bodily harm – guilty plea – intensive corrections order |
Legislation Cited: | Crimes Act 1900 (ACT) s 21 |
Cases Cited: | R v Vu [2018] ACTSC 359 |
Parties: | The Queen (Crown) Deng Barach Awooch (Offender) |
Representation: | Counsel S Saikal-Skea (Crown) J Purnell SC (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Sharman Robertson Lawyers (Offender) | |
File Number: | SCC 333 of 2019 |
Robinson AJ:
Offence
Deng Barach Awooch, to whom I will refer as the offender, has pleaded guilty to one count of intentionally wounding Lual Chol on 31 December 2018, contrary to s 21 of the Crimes Act 1900 (ACT).
This offence carries a maximum penalty of five years imprisonment.
The guilty plea entered by the offender was taken on his arraignment before this Court on a fresh indictment dated 18 May 2020. Prior to this plea being taken, the matter had been the subject of negotiations between the parties as to the count to be presented and as to the factual basis of the plea.
Facts
An agreed statement of facts was tendered by the Crown together with some CCTV evidence and photographs of the injuries sustained by Mr Chol.
In the late afternoon of 30 December 2019, the offender commenced drinking with his two cousins, Lual Chol and Ajak Maynok, at his apartment in Macquarie ACT. The offender consumed approximately four beers.
Later that evening, arguments broke out. Mr Chol asked that the offender pay for a taxi for him to return to his accommodation. The offender refused to accede to this request and Mr Chol then took the offender’s car keys and left the premises.
The offender followed Mr Chol. A confrontation took place between Mr Chol and the offender in the car park of the apartment block where Mr Chol produced a knife and cut the offender on his arm and then left the car park. Mr Chol is then seen on CCTV at a service station a short distance away.
In the meantime, the offender had picked up the discarded knife and moved towards the service station to confront Mr Chol. The CCTV footage shows Mr Chol throwing bottles at the offender and later shows Mr Chol attempting to ward off the offender who now had the knife in his hand.
The offender struck Mr Chol’s upper body with the knife by holding the knife above Mr Chol’s head and striking downwards, whilst Mr Chol placed his hands defensively in front of him. The knife cut a deep gash into Mr Chol’s left forearm.
The offender returned to his apartment. Mr Chol was later assisted by an unknown man and police were called. An ambulance attended the scene and took Mr Chol to Canberra Hospital where he was admitted and treated.
Mr Chol was examined by Dr Tracy Johns who found that the injuries sustained by the wounding would result in permanent scarring. The agreed statement of facts records that “Mr Chol has lost movement (has limited movement) in his finger and wrist.”
Objective seriousness
This was not an unprovoked offence. It occurred on the spur of the moment. The knife involved was first used on the offender. While at one level, understandable, it was certainly wrong for the offender to retaliate. This retaliation, however, made use of a knife. That is a serious matter. Further, the injuries suffered by Mr Chol are significant and permanent.
Subjective circumstances
The offender gave evidence before me and was cross-examined.
In his evidence, the offender described his actions as a result of a ‘frustrating’ situation and as a way to get ‘revenge’ from the cut that he had sustained in the car park.
The offender, in his evidence said “I feel bad, regret it and I feel shameful”. The offender continued “I feel sorry and I wish him get recover. He doesn’t deserve even though I-even though that- even my poor action has led to that”.
The evidence before me included a Pre Sentence Report, an Intensive Correction Order Suitability Assessment and a Psychological Assessment Report from a clinical psychologist, Dr Boer.
The offender is now 32 years of age. He reported to have witnessed traumatic events at the age of 7, while escaping from Sudan, his country of birth. He moved to Kenya so as to escape the horrors of life in Sudan. He migrated to Australia at the age of 16. He has not seen his family in person for approximately 16 years. He is currently single with no dependants.
The offender reported that he left the formal education system at the completion of his year 12 certificate. He commenced tertiary studies at the University of Canberra and obtained a degree in banking and finance. The offender reported that he is currently undertaking a Master of Finance online through the Royal Melbourne Institute of Technology.
The offender also reported that he had previously worked as a support worker in the disability sector before taking on a co-ordinator position through a local ACT service provider, maintaining employment with the same employer for a period of eight years. Owing to this offending, the offender is no longer able to work in that sector because of the cancellation of his ‘working with vulnerable people’ clearance. He reported that he is currently working through an employment agency performing construction labouring tasks.
The offender has not had any history of mental or personality disorder. He has no physical complaints.
The offender has been assessed as low risk of imminent and future violence.
Dr Boer, who conducted a thorough psychological examination, supported this view. He concluded:
Mr Awooch’s overall LOW level of risk is mitigated by an array of risk-reducing protective factors: Support – he has prosocial support from cousins and friends.
I accept the evidence given by the offender that he feels ‘shameful’ and regrets his actions. He further expressed remorse for his actions in a letter dated 27 October 2020 addressed to Mr Chol apologising for his actions.
The offender was found suitable for an Intensive Correction Order. The recommendation mentioned that the following factors would be targeted if such an order was made:
(a)Monitor alcohol use; and
(b)Refer to mental health service provider if required.
The offender was also found suitable for a Community Service Work Condition.
Criminal History
The offender has a history of various driving infringements in the state of Queensland but is otherwise of good character.
Early plea of guilty
In considering the appropriate sentence, the Court takes into account s 35 of the Crimes (Sentencing) Act 2005 (ACT) which entitles the offender to a reduction.
The offender entered a plea of guilty on the first reasonable opportunity after being committed for trial. Negotiations took place at Criminal Case Conferences as to the legal and factual basis of the plea. I will allow a discount of approximately 20%.
Time in custody
The offender has not spent any time in custody for this offence.
Authorities
I was referred to a number of comparative cases in respect of intentional wounding. In particular, I had regard to R v Vu [2018] ACTSC 359 where Loukas-Karlson J collected a number of cases comparable to the one under consideration.
Order
I make the following orders:
(a)For the offence of intentionally wounding, the offender is sentenced to 12 months’ imprisonment (reduced from 15 months) to commence on 3 November 2020 and end on 2 November 2021.
(b)Pursuant to s 11 of the Crimes (Sentencing) Act 2005, the sentence be served in the community by way of Intensive Correction Order. I impose the core conditions and the following additional condition:
(i)Within 12 months from 3 November 2020, the offender undertake 100 hours of community service work.
| I certify that the preceding thirty-one [31] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Acting Justice Robinson. Associate: Date: 3 November 2020 |
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