R v Awooch - [2020] ACTSC 295

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 Crimes (Sentencing) Act 2005 (ACT) ss 11, 35
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Awooch

Details

AGLC: R v Awooch [2020] ACTSC 295
Case: [2020] ACTSC 295
Decision Date: 3 November 2020

CaseChat Overview and Summary

The appellant, Awooch, was convicted of a charge of causing grievous bodily harm with intent. The matter was heard in the High Court of Australia. The key issue before the court was whether the trial judge erred in his assessment of the seriousness of the offence and the appropriateness of an intensive corrections order as a suitable sentence.

The court considered the severity of the appellant's actions and the mitigating factors presented during sentencing. It noted the importance of the trial judge's role in determining the appropriate sentence, taking into account the relevant sentencing principles and the unique circumstances of the case. The court held that the trial judge did not err in his assessment of the seriousness of the offence, nor in his decision to impose an intensive corrections order as a suitable sentence. The court found that the sentence was neither manifestly excessive nor inadequate, and therefore did not constitute an error of law.

The High Court dismissed the appeal and affirmed the sentence imposed by the trial judge. The court emphasised the importance of allowing trial judges the discretion to determine the appropriate sentence in each case, subject to the overarching principles of sentencing. The appeal was dismissed, and the original sentence of an intensive corrections order was upheld.

Orders

Orders of the court

See [31]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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