R v Ayuel
[2020] ACTSC 213
•6 August 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Ayuel |
Citation: | [2020] ACTSC 213 |
Hearing Date: | 6 August 2020 |
DecisionDate: | 6 August 2020 |
Before: | Mossop J |
Decision: | See [44] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – unlawful confinement – act endangering health – plea of guilty – mid range objective seriousness – limited criminal history – young offender – good prospects of rehabilitation – partially suspended sentence of imprisonment |
Legislation Cited: | Crimes Act 1900 (ACT), ss 28, 34 Criminal Code 2002 (ACT), s 45A Crimes (Sentence Administration) Act 2005 (ACT) |
Cases Cited: | R v Nyuon [2020] ACTSC 171 R v Randall Williams [2016] ACTSC 389 The Queen v Avery [2018] ACTCA 57 |
Parties: | The Queen (Crown) Mary Ayuel (Offender) |
Representation: | Counsel S Saikal-Skea (Crown) J Sabharwal (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Sharman Robertson (Offender) | |
File Number: | SCC 336 of 2019 |
MOSSOP J:
Introduction
Mary Ayuel, the offender, has pleaded guilty to the following offences:
(a)One count of unlawfully confining another person (SCCAN11/2020). This is contrary to s 34 of the Crimes Act 1900 (ACT), by virtue of s 45A of the Criminal Code 2002 (ACT).
(b)One count of choking, suffocating or strangling (SCCAN12/2020). This is contrary to s 28(2)(a) of the Crimes Act.
She has two co-offenders, Mr Chol Bol Nyuon and Mr Clinton Saki. Mr Nyuon was sentenced by me on 26 June 2020: R v Nyuon [2020] ACTSC 171. Mr Saki is yet to be sentenced.
Facts
The facts were agreed and are set out in the Statement of Facts which was tendered. In summary, they are as follows. In the early hours of 2 October 2019 Mr Nyuon and the victim met up. Shortly before 3:00am they attended a service station in Gungahlin and purchased cigarettes. They subsequently went to a house in Moncrieff where they spent a number of hours. During this time they consumed alcohol.
The victim had a dental appointment in the city that day, so at approximately 7:30am he and Mr Nyuon attended the offender’s house in Moncrieff. The offender is the victim’s cousin. The victim intended to ask the offender to drive him to the city for his appointment on the basis that he would give her $18 as petrol money.
Despite the offender being reluctant to allow the two men to enter her house, she let them in and they had a cigarette together. She then told the victim that ‘Clinton’ was in the bedroom. This referred to Mr Saki, an acquaintance of the victim who he had known since approximately 2010 through their partners at the time. The offender and Mr Nyuon then went outside to have a cigarette while the victim went to talk to Mr Saki in the bedroom, who was still in bed.
Approximately five minutes later the victim went into the living room. Mr Saki came into the room and accused the victim of stealing $450, which he said was for his mother in Africa. Mr Saki then went and got a knife and threatened to stab the victim. The offender and Mr Nyuon stopped Mr Saki from doing so. They undressed the victim, however, they did not locate the $450. The $18 in cash was stolen from the victim at some point.
Mr Saki then proceeded to tie the victim up and beat him with electric cables and burn him with a white household iron. The Crown does not allege that the burning with the iron is conduct for which the offender is responsible. That is because the offender and Mr Nyuon left the house. They did some shopping and returned to the offender’s residence with some alcohol.
The offender began drinking and, at some point, said it was “her turn”. She said to the victim words to the effect of “you’re my blood, you did this, you shamed me. You are a disgrace to your family; I’m going to finish you”. The offender got a knife and threatened the victim with it, dragging him to the laundry and saying “I’ll cut your throat”. The victim’s hands were still tied behind his back. The offender told the victim that she, rather than Mr Saki, would kill him. She kicked the victim in the head and jumped up and down on his head. She also inserted the knife into his mouth while threatening him with it. She threatened to stab the victim but Mr Saki said “we’re not going to kill him this way, kill him in slow motion”.
At some point, the victim was lying on a bed and the offender took an electric cable and strangled him with it. At the time, Mr Saki was also punching the victim and beating him with a cable. The victim believes that he lost consciousness due to being strangled. Mr Saki and Mr Nyuon were present while the offender strangled the victim with the cable. The offender also punched the victim a number of times during this incident.
Eventually the victim told Mr Saki that he would pay the money, even though he did not take it, so that they would stop hurting him. After initially refusing to contact the victim’s family, at approximately 2:30pm, Mr Saki contacted the victim’s sister, who I will refer to as ZC, and told her that the victim had stolen $450 and would not tell Mr Saki where he had put it. ZC called her sister, who I will refer to as BC, and asked if she could come and pick her up so that they could collect the victim. The two sisters and another woman drove to the offender’s house shortly before 4:00pm.
An agreement was reached between the victim, his sisters and Mr Saki which led to the victim being allowed to leave the premises.
Later that evening ZC called the offender and had a conversation in which the offender denied being present for anything other than Mr Saki “whipping” the victim and denied her involvement in the torture. The offender later participated in a record of interview where she made only limited admissions.
Objective seriousness
13. The forcible confinement was by joint commission. The Agreed Statement of Facts does not identify when the agreement is taken to have occurred. There was clearly agreement to confine the victim after the offender became intoxicated and physically acted against him. I sentence her on the basis that it is only from this point that the agreement existed. This is from approximately midday until sometime after 4:00pm. Excluding those acts which are separately charged, namely the choking or strangling, the physical acts involve dragging the victim into the laundry, threatening to cut his throat, kicking the victim, jumping up and down on his head, inserting a knife into his mouth while threatening him with it and punching him. It is also the case that her co-offender, Mr Saki, continued to threaten the victim. The offender’s role was clearly subordinate to that of Mr Saki. Because the physical acts that I have identified are not the subject of separate charges, the conduct should be reflected in the sentence for the unlawful confinement offence: The Queen v Avery [2018] ACTCA 57 (Avery) at [24].
14. In summary, using the various factors identified in R v Randall Williams [2016] ACTSC 389 at [53] as a framework, the objective circumstances were as follows. The period of confinement in which the offender was involved was approximately four hours, although the overall period of confinement was eight and a half hours. The unlawful confinement was not premeditated or planned. It was effected using violence, threats and physical restraint. The purpose was Mr Saki’s purpose of extracting money he alleged was stolen from him. The conditions under which the victim was confined involved violent, threatening and degrading conduct towards him, his physical restraint and physical and verbal abuse, including threats to his life and to his body. The extent of fear instilled in the victim was high. The identifiable injuries inflicted were limited. The ligatures around his neck cannot be proven beyond reasonable doubt to be attributable to the offender, as opposed to Mr Saki. The burns were not attributable to the offender. The offending was in the mid range of objective seriousness for this offence.
15. So far as the act endangering health is concerned, the offence provision contains a variety of different acts. Choking, strangling or suffocating a person is one of them. There is no clear hierarchy of gravity as between the different acts which are covered by s 28 of the Crimes Act. The Statement of Facts establishes that the victim was strangled with an electric cable. The statement records the victim’s belief that he lost consciousness as a result of being strangled. The manner in which this is expressed does not establish beyond reasonable doubt that, in fact, he lost consciousness as a result of the strangling. However, it does establish that the strangling could not be treated as being at the lowest end of the spectrum of conduct that might amount to strangling. It occurred in the context of a very deliberate course of conduct designed to threaten and inflict harm upon the victim. The conduct is in the mid range of objective seriousness for this offence.
Subjective circumstances
16. The subjective circumstances of the offender are described in a Pre-Sentence Report prepared by ACT Community Corrections. The offender’s counsel also tendered a number of documents demonstrating programs that she had participated in and her employment at the Alexander Maconochie Centre (AMC), and two witnesses were called.
17. The offender is currently 22 years old. At the time of the offences she was 21 years old. She was born in Sudan and immigrated to Australia with her family in 2008 when she was 10 years old. Her parents separated when she was 12 or 13 years old and at this time, she left the family home. She had experienced periods of homelessness before returning to reside with her father at the age of 15.
18. In 2017 she obtained independent accommodation with Housing ACT. Housing ACT is currently seeking termination orders in relation to her lease. The offender reported, and the evidence was consistent with the fact, that if she cannot return to this property she will reside, at least temporarily, with her mother.
19. The offender reported having a positive relationship with her mother. She advised that her relationship with her father has improved since she left the family home. Both her parents reside in the ACT. She also has seven brothers with whom she has limited contact. This limited contact is due to tensions arising from her previous relationship, which resulted in the birth of her daughter. Her daughter is now aged three and resides with the offender’s mother.
20. The offender completed Year 9 at high school. She has never been employed. She relied on Centrelink parenting payments when in the community. She reported no immediate plans to obtain employment. However, a letter from Ms Katherine Brown, a trainer at AMC Education, which was in evidence, indicated that the offender is currently participating in an education and training program at the AMC and was, at that time, enrolled in a Certificate II in Skills for Work and Vocational Pathways. She has subsequently completed that course. She is in a position where she could continue with further education in the future as a result of having completed that program. She has also been employed at the AMC since February 2020, and she has demonstrated a consistent work ethic during that time.
21. She reported having two prosocial friends in the community and a number of antisocial ones. She said her parents discouraged her from having friends and she felt socially isolated.
22. She denied any problems with illicit substance use or alcohol. She disclosed current cannabis use when in the community and consumption of alcohol with some binge drinking.
23. The offender reported no social or group activities, reporting that she hangs out with friends or goes out drinking. She reported previous mental health treatment with Headspace but said that she ceased such treatment due to feeling angry and annoyed with the questions she was asked.
24. She is currently prescribed medication for a sleep disorder and requires treatment for visual impairment.
25. Whilst in the AMC she has completed a variety of health and mental health programs.
26. The evidence of Margot O’Malley, who has been a friend and supporter of the offender’s family since soon after they moved to Australia, was significant. She provided some greater insight into the family dynamics and the significance of the offender’s young child in her life.
27. The offender herself gave evidence about the impact of being separated from her daughter and from her brother’s daughter, for whom she had caring responsibilities. She explained that following the offending she herself had, in fact, transferred $450 to her co-offender, Mr Saki. Consistent with the unusual pattern of facts, there was not a real explanation as to why she did this. She indicated that when she is released from custody she intends to take steps to regain custody of her child, following the involvement of Child and Youth Protection Services after her incarceration. She also indicated that she had not completed Year 12 and that she would try to do a course or look for a job.
Victim impact statement
28. The victim provided a victim impact statement which was read by the prosecutor in court. He stated that the offences have left him “completely traumatised” and he feels like he is living in a nightmare. The offences have impacted upon his feelings of safety, and he finds it hard to trust people and to use public transport.
29. He has suffered psychologically from these crimes and this has affected his relationships with his family and friends, as well as his performance and work and life day to day. He noted suffering from extreme depression and anxiety and reported feeling suicidal at times.
30. It is important to note that significant aspects of the impact upon the victim are attributable to acts by the co-offender, Mr Saki, for which the present offender is not responsible.
Criminal history
31. The offender has no previous criminal history in the ACT. In NSW she has been convicted of destroying or damaging property, assault occasioning actual bodily harm and stalking or intimidation. Those have been dealt with in each case by bonds.
Plea of guilty
32. The joint trial of the offender, Mr Saki and Mr Nyuon commenced on 22 June 2020. At the commencement of the trial, she was arraigned on three counts of an indictment dated 29 January 2020. These were the two counts that she subsequently pleaded guilty to. She was also charged with the more serious offence of kidnapping involving grievous bodily harm. The plea of guilty to the two charges for which she is being sentenced were accepted in full satisfaction of the indictment.
33. She pleaded guilty to the two counts on the fourth day of the trial. Notwithstanding that the victim had given evidence and was part way through his cross-examination, there was still some utilitarian value in the plea. I will allow a reduction of approximately 5% on account of the plea of guilty.
Time in custody
34. The offender has been in custody since 7 October 2019. She has spent a period of 305 days or 10 months in custody, solely attributable to these offences.
Co-offenders
35. Mr Saki is yet to be sentenced.
36. Mr Nyuon pleaded guilty to a single count of common assault. The starting point for his sentence was 120 days or approximately four months’ imprisonment. He was entitled to a 15% discount, having earlier offered to plead guilty to the common assault charge. Therefore, the sentence was 102 days’ imprisonment.
Consideration
37. Clearly the offending conduct in this case was serious. However, the circumstances of the offending do not fit any commonly experienced pattern or have any clear explanation. So far as the offender is concerned, the reason for her involvement in such violent and threatening activities directed to the victim is not clear. She was clearly intoxicated at the time, however, that does not explain why she would join in with the threats and violence that she did.
38. The overall picture presented of the offender is of a person who is still very young. Her life as a young adult has been dominated by looking after her young child. The impact upon her young child and her brother’s young child, for whom she had caring responsibilities, of a further period of incarceration would be significant. The circumstances giving rise to the offending were not of her own making, but rather, because she let the victim and Mr Nyuon into her house when they asked for assistance. Her involvement in the acts of violence directed to the victim, and the motivation for that, remain mysterious.
39. Prior to the present offending, she had a very limited criminal history and her time on remand has been her first period in custody.
40. Because of the unusual circumstances of the offender’s involvement in the offending, it is more difficult to identify any single sentencing consideration that is to predominate. Clearly denunciation of the offender’s conduct, punishment and holding her accountable for the offending are all important sentencing considerations. General and specific deterrence must play a part. Rehabilitation is obviously also significant.
41. I was referred to a number of comparable cases. It is sufficient to refer to the summary of the position given in Avery at [31] which in turn referred to the survey of the comparable problem cases undertaken in Singh v The Queen [2015] ACTCA 65 and the statement of the court that such cases usually attract a sentence of between two and five years’ imprisonment, with the high sentences being reserved for matters involving a high level of violence, causing physical injury or threatening to cause injury or death, and where the offender has a significant criminal history.
42. The nature of the offending and the maximum penalty for the offences indicate that only significant custodial sentences will be appropriate. However, given the offender’s limited criminal history and her youth and good prospects of rehabilitation, I think that she should be entitled to a significant degree of leniency in order to give her the opportunity to put her life on a firm and lawful footing. In my view, it is appropriate to sentence her to significant periods of imprisonment and to partially or wholly suspend those sentences.
43. So far as the charge of forcible confinement is concerned, the starting point is a sentence of 26 months, reduced to 25 months on account of the plea of guilty. So far as the act endangering health is concerned, the starting point is a sentence of imprisonment of 12 months, reduced to 11 months and 15 days on account of the plea of guilty. This sentence will be cumulative as to three months upon the previous sentence. This gives a head sentence of 28 months or two years and four months. The sentence will be suspended after the offender has served 10 months’ imprisonment. The suspension will be conditional upon her entering into a good behaviour order for a period of 18 months subject to the supervision of the Director-General. The offender will clearly benefit from programs which assist her to further her education, improve her employment skills and assist with parenting. The supervision condition is sufficient to permit the Director-General to direct that any relevant programs be undertaken.
Orders
44. The orders that I make are as follows:
1. On the charge of forcible confinement (SCCAN11/2020) the offender is convicted and sentenced to 25 months’ imprisonment, starting on 7 October 2019 and ending on 6 November 2021.
2. The sentence is suspended forthwith, the offender having served 10 months of that sentence, upon the offender entering into an undertaking to comply with her good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of 18 months, subject to the additional condition that she be subject to supervision on parole by the Director-General for a period of 18 months or such lesser period as is determined by the Director-General.
3. On the charge of act endangering health (SCCAN12/2020) the offender is convicted and sentenced to 11 months and 15 days’ imprisonment, starting on 23 February 2021 and ending on 6 February 2022.
4. The sentence is suspended upon the offender entering into an undertaking to comply with her good behaviour obligations under the Crimes (Sentence Administration) Act2005 for a period of 18 months, subject to the additional condition that she be subject to supervision on parole by the Director-General for a period of 18 months or such lesser period as is determined by the Director‑General.
| I certify that the preceding forty-four [44] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop. Associate: Date: 17 August 2020 |
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