R v Banek
[2017] VSC 11
•1 February 2017
| IN THE SUPREME COURT OF VICTORIA | Not restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2016 0114
Between:
| THE QUEEN | |
| and | |
| MAKENY BANEK | Accused |
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JUDGE: | Croucher J | |
WHERE HELD: | Melbourne | |
DATES OF HEARING: | 8 December 2016 | |
DATE OF SENTENCE: | 1 February 2017 | |
CASE MAY BE CITED AS: | R v Banek | |
MEDIUM NEUTRAL CITATION: | [2017] VSC 11 | First revision: 13 February 2017 paras [65], [83], [125] |
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CRIMINAL LAW – Sentence – Murder – Accused, aged 24, tried to kill former de facto wife, aged 20, by punching, kicking and choking – When attempt failed, accused took up knife and stabbed deceased to death – Accused sought to cover up crime until arrested – Full admissions to police – Early plea of guilty – Limited remorse – Relative youth – Accused’s depression impaired judgment, but only moderately – Accused previously gaoled for assaulting deceased twice – Reasonable prospects of rehabilitation – Importance of general deterrence, denunciation, just punishment, specific deterrence, rehabilitation and parsimony – Relevance of current sentencing practices – Sentence of 23 years’ imprisonment with non-parole period of 18 years – But for plea of guilty, sentence of 28 years’ imprisonment with non-parole period of 24 years – Sentencing Act 1991 (Vic), ss 5, 6AAA, 11 & 18.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr J Champion SC DPP with Ms G Coghlan | John Cain, Solicitor for Public Prosecutions |
| For the Accused | Mr D Gibson (plea) Mr J McLoughlin (sentence) | Victoria Legal Aid |
HIS HONOUR:
Overview
On Sunday 13 March last year, Abuk “Jackie” Akek was murdered in her own home in Melton. She was only 20. Her killer – her former de facto partner Makeny “Nelson” Banek, aged only 24 – was enraged that Ms Akek no longer wanted him in her life. As Mr Banek later told police, he considered that Ms Akek had put him in a situation where he said to himself, “Hey, you want me to leave, then I might as well take you with me.” Thus, he made a calculated choice to take the life of Ms Akek, the mother of his two-year-old son, as if somehow it were his prerogative to do so.
From that moment, Ms Akek stood no chance, really. She was small, petite and alone. He was tall, rangy and intent upon killing her. He had beaten her at least twice before – so viciously that he had been gaoled for seven months. And so it was that, having decided to kill her, he beat her again, mercilessly and from room to room in her flat. He punched her. He kicked her. He choked her. He even threw a stereo speaker at her. Yet, despite his strength and the ferocity of his blows, he failed to achieve his ultimate aim by these means.
But, instead of coming to his senses and desisting after such a brutal and protracted yet unsuccessful assault, Mr Banek simply varied his means of attack. This time, he went even further than he had before. This time, he was deadly serious about killing her. He thought, “Maybe a knife will work.” So he went to the kitchen, took up a knife and stabbed Ms Akek three times in the abdomen. She tried to defend herself, but it was hopeless. One stab wound penetrated her aorta, killing her, probably within a very short time.
Mr Banek carried Ms Akek’s lifeless body to her bed and covered her with a blanket. He sought to cover up his involvement by cleaning the flat and throwing away the knife at a nearby park.
Later, he returned to the flat to look for his mobile phone. He noticed a plastic single rose he had bought Ms Akek for Valentine’s Day. Disturbingly, he placed the rose on the bed beside her. He could not find his phone and took hers instead. That was callous.
Mr Banek then went to a friend’s place nearby, showered and went to sleep on the couch, as if nothing had happened. He used Ms Akek’s phone to ring his mother Vida Siliven but said nothing when she answered. He declined to answer any calls made to the phone until his brother Jima Banek rang. When asked by his brother why he had Ms Akek’s phone, he said he would return it to her.
Soon thereafter, his brother and his mother, troubled that something was amiss, went to Ms Akek’s flat. They found Ms Akek on her bed, noticed she was not breathing and had no pulse, and rang for an ambulance. When performing CPR at the direction of the triple-zero operator, Ms Siliven lifted the blanket and then, to her horror, noticed the blood and stab wounds. It was clear that she was dead.
Later that evening, police found Mr Banek asleep on the couch at his friend’s place. He was arrested. He confessed immediately and extensively and was charged with Ms Akek’s murder.
He has pleaded guilty at an early stage and now falls to be sentenced for that crime.
This is a grave example of murder. A young mother has been brutally bashed and stabbed to death for no reason other than her killer’s judgment that, because she did not want him, she was not entitled to live. It is sickening. General deterrence, curial denunciation and just punishment compel a heavy sentence. The murder occurred against the background of previous instances of violence sufficiently serious to result in prison sentences for a first offender. Thus, specific deterrence also looms large as a sentencing purpose.
In my view, the offence is so serious that, had Mr Banek denied his guilt and run a trial, I think the law would have demanded a sentence in the order of 28 years’ imprisonment with a non-parole period of 24 years. However, allowing for his full confession, early plea of guilty and all other considerations, including the added importance of rehabilitation for one so young, I have determined that Mr Banek will be sentenced to 23 years’ imprisonment with a non-parole period of 18 years.
My more detailed reasons for that sentence follow.
Background and circumstances giving rise to the offence
Introduction
Before formally passing sentence, I shall turn to a more comprehensive summary of the background and circumstances giving rise to the offence. Those details were spelt out in part in the prosecution opening, which was read to the Court by the Director of Public Prosecutions, Mr Champion SC, who appeared with Ms Coghlan on the plea. I have supplemented this summary with other information gleaned from the depositions and the exhibits, as well as information provided by Mr Gibson, who appeared for Mr Banek on the plea.
Mr Banek and Ms Akek
Mr Banek was born in Sudan on 12 January 1992 and is now 25 years old. He and his family fled the Second Sudanese Civil War and spent 12 years in a refugee camp in Kenya before coming to Australia in 2005. He struggled with schooling and securing work, although he did have some jobs. He also became involved in illicit drug use and drinking alcohol to excess.
Ms Akek was born on 2 March 1996. As I have said, she was only 20 when she died. Ms Akek also came to Australia as a refugee from Sudan, along with her five siblings, all of whom had been separated from their parents. Between 2012 and 2015, she completed an Advanced Diploma of Legal Practice at Victoria University and had aspirations of studying law.
Mr Banek and Ms Akek met in 2012 in Melbourne. They commenced a relationship and Ms Akek became pregnant. As a result, culturally, she was then considered to be Mr Banek’s wife. Thereafter, she moved into his family home in Kurunjang, a suburb in the west of Melbourne.
Ms Akek gave birth to their son, Youm Banek, on 16 January 2014, when she was still only 17 and Mr Banek was 22. Youm was just two years old at the time of his mother’s death.
Significant events in the months preceding the murder
This was not the first time Mr Banek had been violent to Ms Akek. Indeed, he had incurred prior criminal convictions for assaulting Ms Akek and breaching orders that were put in place for her protection.
On 22 August 2014, a family violence protection notice was served on Mr Banek. It prevented him from being within 200 metres of the Kurunjang residence. The notice was imposed as a result of Mr Banek’s being drunk at the premises, wanting to fight and punching holes in the walls. He was granted bail in relation to a charge of causing criminal damage.
Eight days later, at about 6:00 a.m. on 30 August 2014, Ms Akek was in bed asleep when Mr Banek woke her and started punching her in the head. After the first punch, she blacked out briefly and then put her hands up over her head as it was hurting. He told her he was “going to chop her up” (or something similar). Mr Banek’s family intervened. Ms Akek was in pain and bleeding. She called triple-zero at 7:33 a.m., reported the assault and later made a statement to the police. Mr Banek was arrested, interviewed and remanded in custody.
On 2 September 2014, Mr Banek was granted bail and an intervention order was made with a condition that he not assault Ms Akek. The order remained in place until 24 September 2014.
Only four days later, on 6 September 2014, Ms Akek was woken by Mr Banek biting her face. He then punched her several times before biting her on her back. He started to choke her and she blacked out for a short period of time. When she came to, Mr Banek said he was going to kill her if she screamed out. Mr Banek would not let her leave the room to go to the toilet but he eventually allowed her to have a shower and she managed to get help from Mr Banek’s mother. Later, Ms Akek called triple-zero, reported the assault and made a statement to police. As a result of being bitten on the face, Ms Akek was treated for a ten-centimetre vertical laceration close to her right eye which required stitching. She also suffered bruising to the face. A photograph tendered by Mr Champion showed just how significant those injuries were. Mr Banek was arrested and interviewed in relation to this offending and remanded in custody.
On 24 September 2014, Mr Banek was sentenced at the Sunshine Magistrates’ Court to a total effective sentence of seven months’ imprisonment for the offending against Ms Akek. The offences included recklessly causing injury, contravening a family violence notice and committing an offence while on bail (which offences arose out of the attack on 30 August 2014), and intentionally causing injury, contravening a family violence notice and committing an offence while on bail (which offences arose out of the attack on 6 September 2014).
Also on 24 September 2014, a further intervention order was made which remained in place until 23 December 2014. Another intervention order was made on 10 December 2014 which remained in place until 9 December 2015. There was no intervention order in place at the time of the murder.
Mr Banek was released from prison early in March 2015. He moved back into the Kurunjang residence with his family, Ms Akek and his son.
On 12 February 2016, Ms Akek moved out of the Kurunjang residence, having separated from Mr Banek. She moved into a flat in Unitt Street, Melton, with her son and her friend Ayen Lueth.
On 20 February 2016, Ms Akek’s friend Abut Maker went to collect her from the Kurunjang residence. Ms Akek had been visiting Mr Banek so that he could see their son. She would go along to cook meals. On this occasion, Ms Maker heard Mr Banek say, “I could kill her right now, bash her to death, but you are here.” Ms Maker left with Ms Akek and her son shortly after.
The day before the murder
On Saturday 12 March 2016, the day before the murder, Mr Banek and Ms Akek had an argument regarding his failure to return their son from a walk in a timely fashion. Mr Banek had not been contactable for some hours and, when he did finally return, was drunk. That evening, Mr Banek returned to his friend Madhan Deng’s home at Rigel Street in Melton. He had met Mr Deng some weeks prior and had sometimes stayed at his home. Mr Deng noticed that Mr Banek seemed upset at the time.
The day of the murder
On Sunday 13 March 2016, the day of the murder, Mr Banek went to church in the morning with others and then returned to Mr Deng’s home in Melton.
At about 2:10 p.m. that afternoon, Ms Akek was at her unit with her son and Ms Lueth. Ms Siliven called in and collected her grandson for a visit to her home in Kurunjang. Ms Lueth left a short time later to visit relatives.
At 2:33 p.m., Ms Akek spoke with Ms Maker over the phone. Ms Maker said she would come over later that day. Ms Akek then said, “Hold on, there is someone at the door, I’ll call you back.” She then hung up the phone.
Ms Akek went to the front door of the unit. Mr Banek was there and she let him inside. He went to the lounge room and sat on the couch to watch television. The two started arguing.
The argument escalated and became violent. Mr Banek punched Ms Akek to the head and body. He kicked her. He choked her with his hands. This occurred throughout the unit – at the front door, the hall, the kitchen and in Ms Akek’s bedroom. Mr Banek grabbed a stereo speaker and tried to hit Ms Akek with it, but that was ineffective.
Mr Banek then found a knife from the kitchen and began to stab Ms Akek. Her little finger on her right hand was cut as she tried to defend herself. Mr Banek stabbed her three times to the abdomen. One stab wound to the upper abdomen penetrated the aorta, killing her.
Mr Banek’s behaviour after the murder
Mr Banek then carried Ms Akek to her bedroom, placed her on the bed and covered her with a blanket. He cleaned the unit. He put the cleaning items and the stereo speaker into a plastic garbage bag. He then left the unit, taking the garbage bag and knife with him. He put the garbage bag into a bin in a nearby park and threw the knife towards a fence in the same park.
At 2:55 p.m., Mr Banek called his mother using Ms Akek’s phone. She answered the call but no one spoke. She called back but no one answered.[1]
[1]While it is not clear form the prosecution opening or the depositions, presumably these particular calls occurred while Mr Banek was still at Ms Akek’s flat after the killing and not when he returned later.
At about 4:30 p.m., Mr Banek returned to Mr Deng’s house, which was only about 600 metres from Ms Akek’s unit. Mr Deng saw him there. Mr Banek seemed tired and was not wearing any shoes. He stayed for only a short time.
Mr Banek had lost his phone. He returned to the park to see if it was there, but he could not find it. He returned to Ms Akek’s unit but could not find his phone there either, so he took Ms Akek’s phone. He also saw a plastic single rose that he had bought her for Valentine’s Day. He placed the rose on the bed beside Ms Akek. He then left the unit.
Mr Banek then returned to Mr Deng’s home again. Between 6:00 p.m. and 7:00 p.m., Mr Banek had a shower and went to sleep on the couch in the lounge room.
During this time, a number of people phoned Ms Akek but the calls went unanswered. Ms Siliven tried to call Ms Akek a number of times but the phone rang out. She was concerned. She asked one of her sons, Jima Banek, to call Ms Akek’s phone, which he did at 6:38 p.m. Mr Banek answered. When asked what was going on, Mr Banek said he would go and return the phone to Ms Akek. Of course, she was dead at that stage, which Mr Banek knew.
Discovery of Ms Akek’s body
Concerned that something was wrong, Ms Siliven decided to go to Ms Akek’s unit. At about 6:45 p.m., she went there with Jima Banek. They found the door to the unit ajar. They went inside and found Ms Akek in her bedroom, on the bed, with a blanket over her and the rose placed next to her. She was not breathing and had no pulse.
An ambulance was called. Jima Banek and his mother performed CPR at the direction of the triple-zero operator. While doing so, Ms Siliven lifted the blanket and noticed the blood and stab wounds.
When ambulance officers arrived, they checked Ms Akek and found no signs of life. There were visible puncture wounds to the lower left and upper rib cage areas, a small laceration to her neck and a swollen right cheek.
Police were notified and attended the scene.
Arrest and interview of Mr Banek
At about 9:00 p.m., police went to Mr Deng’s home. They found Mr Banek asleep on the couch. He was arrested for the murder of Ms Akek. He told police, “I snapped, I used a knife and my fists. I love her very much but she did not love me.” He told police where the knife was. He was found to have an injury to his right hand.
Mr Banek was formally interviewed by police that evening and into the following day. Among other things, he said the following:
a) When told he was to be interviewed about Ms Akek’s death, he said, “It was me.”
b) He spoke of the argument on the Saturday and that Ms Akek was angry at him for having his phone turned off while looking after their son. He said that Ms Akek gave him a hard time and he got depressed.
c) The following day, he resolved to fix the problem and went to see Ms Akek. Once he was there, however, they argued.
d) He said: “She did say she doesn’t want me in [her] life. I want her in my life. I love her. There’s nobody else in this world I can love more than I love her. She put me in a situation where I said, ‘Hey, you want me to leave, then I might as well take you with me.’ … And that’s the choice I took”.
e) Later, when asked what actually happened, he said, “What … actually happened was – well, … when I snapped I decide[d] to beat her up and kill her. In my head it just said ‘kill her’, you know, so I just did, or try.”
f) When pressed about the details of what actually happened, Mr Banek initially said, “I cannot go through that,” but then said he used his hand, his legs and a knife.
g) He said he punched her “everywhere in the body” and “plenty” of times – “I punched her too much”. He tried to use his hands to kill her. He punched and kicked her and thought that, if he punched her, she would die, but that did not work. He thought maybe a knife would work and he grabbed the knife from the kitchen.
h) He thought he stabbed Ms Akek three or perhaps four times. He said he stabbed her on her stomach three times and on her neck.
i) When asked whereabouts in the house he punched, kicked and stabbed Ms Akek, he said, “Pretty much everywhere. Everywhere in the house.” He said he stabbed her in the kitchen and he took her into the bedroom where he covered her with a blanket.
j) When asked why he used a knife, he said, “I don’t – why I use a knife. But I thought at the end of the day if I love her that much and I had no choice, nowhere to go, yes, she’s the mother of my child, nowhere to go, nobody else is gonna love me that – if she hasn’t loved me. … Yeah. Nobody else gonna – yeah. I thought, ‘I’m gonna take her life and let it be.’ … [I] decided to take her life.”
k) Later, he said that she did not want to listen to him, that he “tr[ied] to fix [the problem]”, but, “at the end of the day, I had a conclusion, yeah: kill her or not. I – I decide – kill her, you know.”
l) He told police about the disposal of the knife and putting other items in the bin. He admitted that he tried to “cover myself, in a way”.
m) He admitted that, after leaving initially, he went back to Ms Akek’s house, cleaned up some more, placed a flower beside her and then left. When he saw the flower, he thought, “[L]ike, if she’s dead, like, I might as well give her a flower, you know.”
n) He admitted that Ms Akek did not attack him physically but only verbally.
o) He thought that the injury to his right hand was from punching Ms Akek.
Examination of Ms Akek’s flat and surrounds
Ms Akek’s flat was examined. Blood swabs were taken from the internal side of the front door, on the door frame of the front bedroom, an internal door to the garage, on Ms Akek’s bed, a cushion from the lounge room, the kitchen floor and the kitchen cupboard.
The knife that Mr Banek disposed of was found embedded in a fence paling at Emil Park, a small park to the north side of Unitt Street. Also located in a bin at the park were blood-stained tissues, hair extensions and a broken wooden Audio Sonic speaker that Mr Banek used to attempt to strike Ms Akek.
Autopsy
An autopsy was performed on Ms Akek’s body by forensic pathologist Dr David Ranson. The cause of death was identified as stab wounds to the abdomen. Dr Ranson made the following additional observations:
a)Numerous abrasions with associated swelling and bruising were present on Ms Akek’s head.
b)There were two superficial incised wounds on the left side of the neck running horizontally.
c)There were two stab wounds to the front of the torso at the bottom of the rib cage.
d)There was a stab wound to the left side of the abdomen.
e)The path of one of the stab wounds from the left side of the body pierced the small bowel, the stomach and the aorta and then into the connective tissue of the spine.
f)The path of the second stab wound terminated to the left side of the spine into the flesh area between the vertebrae next to the spine.
g)There was an incised wound to the inner aspect of the right little finger from the base to just past the first joint from the base.
h)There was a patchy abrasion and incised wound on the left wrist.
Dr Ranson made the following comments about those injuries:
a)The main injury pattern comprised stab wounds to the abdomen, an incised injury to the right hand, an incised injury to the left wrist, incised injuries to the neck and evidence of blunt force injuries to the face and the arms.
b)The bruising and abrasions to the head indicate that multiple applications of force have been applied to the head including the upper part of the face, cheeks and top of the head.
c)An avulsion-type laceration to the scalp in association with the hair braids was likely a result of the deceased’s hair being pulled.
d)The injuries to the arms, including the bruising to the right forearm, and the incised injuries to the right little finger and the front of the left wrist may well have occurred where the deceased was protecting herself from applications of injury to the front of the body.
e)The three incised wounds of a stab type at the front of the abdomen were all associated with deep penetrating injuries that entered the abdominal cavity.
Victim impact statement
I turn now to the victim impact statement.
Mr Champion read aloud in Court the victim impact statement of Ms Akek’s older sister Apanda Akek, who wrote on behalf of the family. She speaks of her younger sister’s kindness and her “golden heart”. She detailed the pain, anger and despair that her sister’s family and friends are enduring and how this tragic death has left unbearable scars in their hearts and caused the loss of a young boy’s cherished mother. To her family, being happy does not seem right any more.
The victim impact statement is a powerful and moving document. I have taken its contents into account in sentencing.
Nature and gravity of the offence
I turn now to an assessment of the nature and gravity of the offence and Mr Banek’s moral culpability and degree of responsibility.[2]
[2]See s 5(2)(c) and (d) of the Sentencing Act 1991 (Vic).
Murder is the most serious offence in the criminal calendar. In this State, it is (mostly) a common law offence[3] the maximum penalty for which is set by statute at imprisonment for life.[4]
[3]The exception is that what was once the felony-murder rule is now put on a statutory footing – see s 3A of the Crimes Act 1958 (Vic) – which was inapplicable in this case.
[4]See s 3 of the Crimes Act 1958 (Vic) and s 5(2)(a) of the Sentencing Act 1991 (Vic).
Ms Coghlan, on behalf of the Director, did not submit that Mr Banek’s crime falls into the worst category of case or as one warranting a life sentence but, rather, accepted that it was a case calling for a fixed term with a non-parole period. I accept that submission. Nevertheless, in so far as labels matter, I regard Mr Banek’s offence as a very serious example of murder. There are several reasons.
First, every murder, by definition, involves the loss of a human life in culpable circumstances. Ms Akek was a young woman who left behind her toddler son, as well as her family and friends.[5] I have already referred to the terrible loss and sadness her family members have suffered and will continue to suffer. In all likelihood, given his tender age, Ms Akek’s son will have no or very little memory of his mother. What a terrible thing to do knowingly – to deny a child of a life with and the memory of his mother. Fortunately, Apanda Akek has been able to take on the care of her sister’s child, so that at least he will remain within his family.
[5]See s 5(2)(daa), (da) and (db) of the Sentencing Act 1991 (Vic).
Secondly, Mr Banek’s motive for the killing Ms Akek was plain: if he could not have her, she must die. It is thinking that is distorted, selfish and deeply repugnant to society’s values. Homicidal behaviour informed by such thoughts must be denounced in the clearest terms and met with condign punishment.
Thirdly, Ms Akek’s last moments alive must have been terrifying, and Mr Banek must have known it. As Ms Coghlan submitted, the attack leading to the actual killing was protracted. It involved not only Mr Banek punching Ms Akek many times, but also kicking her, choking her and trying to hit her with an audio speaker in various locations of her own home, a place where she was entitled to feel safe. Having failed in these attempts to kill her, Mr Banek used a knife to stab Ms Akek multiple times to the abdomen. The attack continued despite Ms Akek’s attempts to defend herself. She must have known that Mr Banek was trying to kill her. This was not an offence involving a spontaneous outburst of violence which was immediately regretted, but, rather, a prolonged and multi-faceted attack perpetrated in order to achieve the single aim of killing Ms Akek. Mr Banek had a chance to come to his senses, to show some mercy, after he had failed to kill her with his bare hands, but, instead, he cruelly chose to carry on with his murderous plan.
Fourthly, Mr Banek has a history of violence towards Ms Akek. He first assaulted his former partner in August 2014, when they were still in a relationship and she was only 18 years old. At that time, she was a new mother to their very young child. The assaults continued and increased in severity only a short while later. As indicated earlier, in the second attack, Mr Banek bit Ms Akek on the face to the point that she needed stiches and beat her so badly that she lost consciousness. He is not to be punished for those offences a second time. But to have murdered Ms Akek against that background only increases Mr Banek’s moral culpability and the need to deter him from violence against others.
Fifthly, the offence was committed without provocation. There is nothing in the behaviour of Ms Akek that could provide even the slightest justification for or mitigation of Mr Banek’s crime.
Sixthly, Mr Banek knew from past experience that Ms Akek was small and vulnerable and that she was no match for him. Presumably, that experience informed his thinking that he would kill her with his bare hands. Either way, it is plain that, in a cowardly fashion, he sought to exploit his physical dominance to achieve his ultimate aim, which only adds to his moral culpability.
Seventhly, while Ms Coghlan accepted that the murder was not premeditated in the sense that Mr Banek did not go to the flat to kill, she submitted that it cannot be characterized as an entirely spontaneous attack either. Mr Banek went to Ms Akek’s home to confront her about the relationship problems they had been having. By his own admission, Ms Akek had told him the previous day that she did not want to see him. Thus, Ms Coghlan submitted, it could not be said that Mr Banek had been shocked by a sudden realization that Ms Akek did not want to be with him. I accept that submission, so far as it goes. But my acceptance of that submission should not be taken as indicating that I place less weight on the fact that the offence was not planned before Mr Banek entered the house and an argument erupted.
Eighthly, Ms Coghlan relied on the fact that Mr Banek had also threatened to kill Ms Akek and had spoken of wanting to bash her to death on earlier occasions as increasing his moral culpability. I accept that submission.
Ninthly, Ms Coghlan also submitted that Mr Banek’s moral culpability is increased by his actions after the killing. These included his cleaning of the apartment, covering Ms Akek’s body with a blanket and disposing of the knife and speaker used in committing the crime. Mr Banek also took Ms Akek’s phone, ignored calls made to that phone and answered one call from his brother while still pretending that Ms Akek was alive when, by that time, he well knew she was dead. I accept that submission, although I think these are lesser considerations when compared with the nature of and motive for his attack.
Tenthly, I am satisfied that Mr Banek intended to kill Ms Akek. The offence of murder can be committed with or without motive and with an intention to kill, an intention to cause really serious injury, recklessness as to causing death or recklessness as to causing really serious injury. I have already spoken about Mr Banek’s motive. In some cases, and this is one of them, the state of mind with which a murder is committed can be relevant to an assessment of the seriousness of the offence. In my view, Mr Banek’s crime involved a greater level of moral culpability because he intended to end Ms Akek’s life. He must be taken to have intended not only to ignore the sanctity of human life but also to have inflicted on Ms Akek’s loved ones – and his own son – the type of suffering that commonly results from such a crime.
Finally, while this next issue is something that might be dealt with more appropriately under an assessment of mitigating factors, it is convenient to deal with it now, since it goes to the question of moral culpability. During the plea hearing, without objection, Mr Gibson tendered a report by Dr Danny Sullivan, a consultant psychiatrist. I accept Dr Sullivan’s opinion that Mr Banek had a sustained depressive episode which preceded the offence and was likely to have affected his thoughts about the future and his perception of his life. Dr Sullivan considered it likely that Mr Banek’s depression was, at least in part, causally associated with the offence, and resulted in impairment of judgment and a reduced capacity to think clearly and make calm and rational choices. In my view, this is a factor that reduces Mr Banek’s moral culpability, but only by a very modest degree. Overall, Mr Banek’s behaviour during and after the offending was calculated and heartless. His moral culpability for the offence is at a very high level.
I should add at this point that, despite what might be thought to be some suggestions of psychosis in Mr Banek’s behaviour at the time of the offence and upon his admission to prison, and despite his history of psychosis in the months preceding the offence, and perhaps earlier, which will be touched on shortly, Dr Sullivan is of the view that there was no evidence of delusions concerning Ms Akek or of any relevant psychosis. Mr Gibson did not put any submission to the contrary. I shall act on Dr Sullivan’s opinion.
Mitigating factors
I turn now to the factors in mitigation on which Mr Banek is entitled to rely. Before doing so, I shall set out in some detail his background as outlined by Mr Gibson on the plea.
Background
As I have said, Mr Banek is 25 years old and was 24 at the time of the offending.
He was born in the South Sudanese village of Yaya and is the eldest of six children. His father was a Sudanese Rebel Army fighter involved in the Second Sudanese Civil War. During the war, when Mr Banek was one year old, the family’s home was invaded and his father was shot. Mr Banek’s parents were subjected to horrific treatment by the Sudanese Army. The family fled South Sudan. They experienced months of displacement and eventually arrived at the Kakuma Refugee Camp in Kenya. The family spent 12 years in that camp, living in tents and then a small brick house. When he recovered from his injuries, Mr Banek’s father began working as an interpreter for the Red Cross in the refugee camp. It was a physically tough environment in which food was barely adequate and Mr Banek’s father was often absent because of work. He would see the family only about once a month. Violence was also prevalent in the camp. Mr Banek witnessed some of that violence, including the shooting of civilians.
Mr Banek and his family came to Australia as refugees in 2005 and settled in the Melbourne suburb of St Albans. He spoke very limited English when he arrived in Australia. While his father was an interpreter for the Red Cross, English was not spoken much in the refugee camp. Mr Banek studied at the Western English School in Australia for six months so that his English could improve to a standard where he could participate in the local education system.
In addition to this, there was also a significant gap in Mr Banek’s schooling which made adjusting to the Australian educational system difficult for him. His education in the refugee camp was equivalent to only a Grade 5 level. He was initially enrolled in Year 9 at the Kealba Secondary College. He struggled in that class and was moved down to Year 8. He was then moved to Brimbank Secondary College where he repeated Year 8 and then moved to a Year 9 class the following year. School was continually an academic struggle for Mr Banek.
In 2008, the Banek family moved to Melton where they continue to live today. Mr Banek attended Kurunjang Secondary College for Years 10 and 11. He dropped out of school in 2010 before completing his Year 11 exams. He was 18 at the time. He began using cannabis and drinking alcohol, which he concealed from his family.
Upon leaving school, Mr Banek did a six-month pre-apprenticeship placement at Handbrake Turn (Certificate 1) and then commenced an apprenticeship with an auto mechanic in St Albans. Mr Banek did not like his boss at the auto mechanic business and left after one month. His parents then sent Mr Banek to do volunteer work, although he ceased this after several weeks.
Mr Banek’s parents became concerned about their son’s peer associations, cannabis use and alcohol consumption. They decided to send him to Perth in the hope that he would escape his troublesome peer group. Mr Banek moved to Perth where he lived for two years, initially living with his uncles and aunts.
While there, Mr Banek completed a Certificate II in auto mechanics. He then commenced an apprenticeship, but found this work unsatisfying and sought new employment. He then worked in a fish factory for six months.
When some of Mr Banek’s friends from Melbourne moved to Perth, he fell back into drinking and using cannabis. He stopped living with his uncles and aunts.
On the insistence of his father, who had learned from his relatives that Mr Banek was again mixed up with a troublesome peer group, Mr Banek moved back to Melbourne in 2012.
Mr Banek met Ms Akek in Melbourne on New Year’s Eve in 2012. Shortly thereafter, they began a relationship together. It was Mr Banek’s first serious relationship.
Mr Banek and Ms Akek’s families knew each other in Kenya. In March 2013, when Mr Banek’s father returned to South Sudan to look for work, he stayed with Ms Akek’s father.
In April 2013, Ms Akek fell pregnant. This caused cultural problems for the couple as pre-marital relationships were disapproved of, as were children born out of wedlock. To resolve these cultural problems, a payment, by way of an apology and a dowry, had to be made by Mr Banek’s family to Ms Akek’s family in Kenya. Five-hundred cows were bought at a cost of around $15,000 for Ms Akek’s family to prepare the way for an engagement. It was agreed between the families that Mr Banek would buy a further 500 cows as part of an agreement to marry Ms Akek.
The couple’s relationship was further complicated by the fact that Ms Akek had previously been in a relationship with a man with whom Mr Banek had been in conflict. The other man had stabbed Mr Banek in the neck during a fight between two groups of Sudanese youths in July 2012. There was a further dispute between the two men in November 2013, when Mr Banek was again stabbed, which required a short period of hospitalisation and resulted in criminal charges.
When Mr Banek left hospital, he and Ms Akek moved in with his parents at the Kurunjang residence. Following the attack, Mr Banek would ruminate about his safety and had nightmares about fighting. At around the same time, he became isolated from his friends and found it difficult to trust people. He became more reliant on the strength of his relationship with Ms Akek.
At about the same time that Mr Banek moved with Ms Akek to his parents’ residence, he took a job in a cheese factory, which he kept for six months.
In January 2014, Mr Banek and Ms Akek’s son Youm was born. Ms Akek went to live with relatives for two months, consistent with the family’s cultural practice. Ms Akek then returned to living with Mr Banek and his family. At around this time, Mr Banek took a job at a bread factory. He was still smoking cannabis and drinking, sometimes heavily on the weekends.
Although the couple were still living together at this time, Mr Banek believed that Ms Akek was continuing to socialise with the man who was her former boyfriend and his enemy. Ms Akek was going out late at night and staying out by herself, which contravened cultural norms that she should go out only with other married women.
Mr Banek was working hard to pay for the dowry and at the same time worrying whether Ms Akek would marry him and whether it was all worth it. The couple would argue and this would lead Mr Banek to engage in heavier alcohol abuse. He became bitter and jealous, which led to the assaults for which he was ultimately imprisoned for seven months in September 2014.
In March 2015, Mr Banek was released from prison. He had difficulty finding work, though he ultimately secured employment in a toilet paper factory.
Mr Banek had learned about the illicit drug “ice” in prison and started using it in August 2015. He used ice every few weeks and also continued to smoke cannabis and drink alcohol. He started to develop psychotic symptoms and suicidal ideation. He was also having trouble sleeping, for which his doctor prescribed Temazepam. He ultimately disclosed his suicidal thoughts to his family.
On 9 February 2016, he was assessed by the Mid West Area Mental Health Service with symptoms of auditory hallucinations, a belief that other people could read his thoughts, lowered mood and suicidal ideation. His mother told the doctors that these symptoms may have been present for several years.
On 11 February 2016, Mr Banek overdosed on Temazepam. He was admitted as a patient at Orygen Youth Health, a mental health organisation for young people in Melbourne. He was diagnosed with first episode psychosis and a major depressive episode. His condition settled quickly and his mood improved with the introduction of the antipsychotic medication Risperidone, as well as Diazepam. He was released from Orygen after five days.
At a follow-up assessment at Orygen on 25 February 2016, Mr Banek admitted believing that he was dead due to the scars on his neck and that, if he killed himself, he would be able to confirm this. He was, however, otherwise assessed as no longer being depressed or as experiencing psychotic symptoms. At a further check-up on 1 March 2016, Mr Banek reported that his mood was “really good”. He did not attend a further check-up scheduled for 11 March 2016.
On his release from Orygen, Mr Banek ceased using ice and cannabis, but continued to drink alcohol. He attributed the drinking to depressed thoughts surrounding his lack of employment and uncertainty regarding his relationship with Ms Akek.
Mr Banek returned to live with his family. By this time, Ms Akek had moved out of the Kurunjang home, but Mr Banek still would visit or spend time with his son each day.
After the offending and his arrest, Mr Banek became suicidal over what he had done and was recommenced on Risperidone. Mr Gibson said that his instructions were that Mr Banek slowly began to recover and to realise how irrational and wrong his behaviour had been. He indicated that Mr Banek is now of the view that he has killed a good person who in no way deserved what happened to her. He added that Mr Banek acknowledges the fact that he has deprived his son of his mother and he sees the devastation he has caused to Ms Akek’s family and also to his own family. I shall return to these thoughts when considering the issues of remorse and rehabilitation.
I turn now to the factors in mitigation.
Full admissions to police
The first factor in mitigation is that, upon his arrest, Mr Banek made a full confession to police.[6] His admissions not only made the case of murder against him, but he also admitted to matters in aggravation that might not have been capable of proof absent his admissions.
Early plea of guilty
[6]See s 5(2)(g) of the Sentencing Act 1991 (Vic).
Secondly, Mr Banek’s plea of guilty is significant in several ways.[7]
[7]See s 5(2)(e) of the Sentencing Act 1991 (Vic).
First, it was made at a very early stage. He entered the plea at a committal mention hearing in the Magistrates’ Court and honoured that plea in this Court.
Secondly, his plea has obviated the need for what would have been a stressful contested committal hearing and trial and has spared the witnesses the ordeal of reliving these events and being cross-examined about them.
Thirdly, the plea involves an acceptance by Mr Banek of legal responsibility for his actions and a willingness to facilitate the course of justice.
Remorse (limited)
Thirdly, I am satisfied that Mr Banek has shown some remorse, albeit it is rather limited at this stage.[8] In my view, despite the instructions Mr Gibson has, Mr Banek is only just beginning more fully to understand the grave impact and wrongfulness of his thoughts and actions. There are four reasons for those conclusions.
[8]See s 5(2)(g) of the Sentencing Act 1991 (Vic).
First, his admissions to police and his early plea of guilty suggest a measure of remorse.
Secondly, the evidence of those who have spoken to Mr Banek since the killing suggests that he is developing some remorse in relation to his offending. Mr Gibson explained that, once Mr Banek began to recover in custody from his psychological afflictions, he wrote a letter to his family acknowledging what he had done and expressing regret. That is a positive sign. That he has been shunned, at least initially, by some members of his family may well bring the gravity of his crime home to him as well. Further, in his report, Dr Sullivan says this about Mr Banek:
He appears to be in the early stages of developing insight into the errors in his thinking, but will require psychological intervention to develop a more sophisticated understanding and strategies to manage his anger.
Thirdly, however, as positive as the tentative view expressed in that passage may be, the difficulty is that that passage is preceded immediately by the following:
Mr Banek describes marked jealousy in the relationship, and a range of cognitions common to family violence offenders. His jealousy does not appear to contain delusional elements. His attitudes to the relationship and to his ex-partner appeared founded in possessive and hostile attitudes which to Mr Banek justified his violence. He reports significant angry and hostile ruminations developing in recent years, focused predominantly on his ex-partner. In particular, Mr Banek’s cognitions rationalise her behaviour towards him as justifying his violence towards her.
Fourthly, the nature of the offence, his prior offending and the admissions he made about his motivation for the murder suggest rather entrenched thinking of this kind.
Thus, I think Mr Banek has a long way to go before he could be considered truly remorseful for or understanding of the grave impact and wrongfulness of his thoughts and actions. As I say, however, I accept that he has shown some remorse, albeit limited.
Relative youth
The fourth factor in mitigation concerns Mr Banek’s relative youth.[9] Mr Gibson submitted that, in addition to his relatively young chronological age, there are features of emotional immaturity in the way Mr Banek handled his life – including his substance abuse and employment – and his relationship problems. He submitted that the gesture of putting a rose next to Ms Akek’s body after killing her speaks of immaturity and a lack of insight. I accept those submissions, although I think the rose gesture is also weird and disturbing.
[9]See s 5(2)(g) of the Sentencing Act 1991 (Vic).
In my view, Mr Banek is still at an age where his values and attitudes are still being formed. It must be remembered that he has been exposed to unthinkable things in his relatively short life. It is of course sad that he will have to develop more appropriate values and attitudes while in gaol, but that, of course, is an unavoidable consequence of the nature and gravity of his crime. He must go to gaol, and for many years. But one of the great aims of the criminal law is to rehabilitate younger offenders. And Mr Banek is still young enough that rehabilitation is a relevant consideration in his case, and an important one at that.
Reasonable prospects of rehabilitation
Finally, I am satisfied that Mr Banek has reasonable prospects of rehabilitation – not good or excellent, but at least reasonable.[10] There are several reasons for that conclusion.
[10]See s 5(2)(g) of the Sentencing Act 1991 (Vic).
First, Mr Banek’s admissions, plea of guilty, relative youth and remorse (limited though it is) point in that direction.
Secondly, while he hardly has an impressive employment history, Mr Banek has shown he has some ability to work and contribute to the community. He has secured work in the prison and works in the kitchen. I am satisfied that he is capable of working again upon his eventual release from prison.
Thirdly, Mr Banek is fortunate to have the support of his parents and some of his siblings. His father has visited him in prison. He has had telephone contact with his mother and all but one of his siblings, who refuses to speak with him.
If Mr Banek had no history of illicit drug use, alcohol abuse or domestic violence, or if he had demonstrated impressive reform in those areas, it is likely I would have considered his prospects of rehabilitation to be substantially better.
That said, while his history of drug use, alcohol abuse and domestic violence is not promising, the length of the sentence I must impose will give him sufficient time to do courses in prison that will assist his reform in those areas. My recommendation is that the prison authorities ensure that he is offered such courses during the service of his non-parole period.
Sentencing purposes
I turn now to the purposes of sentencing.
Section 5(1) of the Sentencing Act 1991 (Vic) provides that the only purposes for which sentence may be imposed are, to use the shorthand, general deterrence, specific deterrence, denunciation, protection of the community, just punishment and rehabilitation.
General deterrence, denunciation and just punishment
In my view, general deterrence, just punishment and denunciation are important considerations in this case of murder. The community should understand that behaviour of the type engaged in by Mr Banek is denounced by the courts and will result in a substantial term of imprisonment that reflects that an innocent young mother’s life has been taken as a result of violence inflicted by her former de facto partner in brutal and callous circumstances, and that the lives of Ms Akek’s loved ones have been marred forever in consequence.
Specific deterrence
Mr Banek’s prior convictions for violence committed against Ms Akek require that specific deterrence be given significant weight in this case, albeit moderated to some extent in light of his relative youth, limited remorse, admissions and early plea of guilty.
Rehabilitation and protection of the community
In my view, rehabilitation remains an important consideration. This is particularly so because Mr Banek is relatively young and his prospects of rehabilitation are at least reasonable.
While there are some disturbing aspects to Mr Banek’s offending, I do not consider that there is any need to add a separate component in sentencing for protection of the community. The sentence that results from the other purposes of sentencing will ensure that the sentence is of sufficient severity to protect the community.
I think it is important to recognize the interplay between rehabilitation and protection of the community in any event. Mr Banek will be returning to the community ultimately. It is therefore in the community’s interests that such prospects of rehabilitation as he has be maximized, so that, when he does return to the community, his risk of reoffending is as low as it reasonably can be and his chances of successful reintegration into the community are good.
Parsimony
Section 5(3) of the Sentencing Act provides that “[a] court must not impose a sentence that is more severe than that which is necessary to achieve the purpose or purposes for which the sentence is imposed”. That provision reflects the common law principle of parsimony. In my view, the sentence I am about to pass is neither more nor less severe than is necessary to achieve the purposes I have just discussed.
Current sentencing practices
In so far as I can determine them, I have had regard to current sentencing practices for murder.[11]
[11]See s 5(2)(b) of the Sentencing Act 1991 (Vic).
Sentencing statistics show that, for the period from 2009-10 to 2013-14, the average non-life sentence for murder ranged from about 18-and-a-half years’ imprisonment in 2009-10 to about 22 years’ imprisonment in 2013-14; the median sentence was 20 years’ imprisonment, as was the mode; and the median non-parole period was 16 years, as was the mode.[12]
[12]Sentencing Advisory Council, Sentencing Snapshot (No 171), May 2015, pp 2-4.
Of course, those statistics are of limited utility, mostly because they do not distinguish cases according to their most important sentencing considerations – such as the seriousness of the offence, whether there was a plea of guilty or not guilty, whether there were significant prior convictions, the age of the accused, whether there were significant aggravating or mitigating factors, and so on. Nevertheless, they do give some guidance.
Sometimes, case comparisons can be a useful tool in gauging current sentencing practices. On the plea, counsel referred me to several cases of murder committed in a domestic setting. Of those in which a plea of guilty was entered, the sentences ranged from 16 years and six months’ imprisonment with a non-parole period of 13 years and six months to 22 years’ imprisonment with a non-parole period of 18 years.[13] Of those in which a plea of not guilty was entered, the sentences ranged from 21 years’ imprisonment with a non-parole period of 16 years to 25 years’ imprisonment with a non-parole period of 20 years.[14]
[13]Those cases included: Bayram v The Queen [2012] VSCA 6 (16.5/13.5); R v Singh [2010] VSC 299 (17/13); DPP v O’Neill [2015] VSCA 325 (18/13); McPhee v The Queen [2014] VSCA 156 (18/13); DPP v Daing [2016] VSCA 58 (18.5/14.5); R v Klaussner [2015] VSC 296 (19/15); Felicite v The Queen (2011) 37 VR 329 (19/16); R v Mulhall [2012] VSC 471 (19/16); Delich v The Queen [2014] VSCA 66 (20/16); Barrett v The Queen [2010] VSCA 133 (21/17); R v Carolus [2011] VSC 356 (21/17); R v Penglase [2011] VSC 356 (22/18). There was also Hopkins v The Queen [2015] VSCA 174; [2011] VSC 517, where King J imposed a life sentence with a non-parole period of 30 years, but I think it is fair to say that that killing was in a far more serious category than any of the others in the foregoing array of cases.
[14]Those cases included: DPP v Browning [2016] VSCA 153 (21/16); Chalmers v The Queen (2011) 37 VR 464 (22/18); Meade v The Queen [2015] VSCA 171 (23/19); R v Constantinou [2013] VSC 474 (24/20); R v McDermott [2016] VSC 489 (25/20).
It must be borne steadily in mind that the concept of current sentencing practices is simply one factor among many to which, by force of legislation, a court must have regard when sentencing an offender.[15] It is not the only factor.
[15]See s 5(2)(b) of the Sentencing Act 1991 (Vic).
That said, a survey of the cases to which counsel referred, and others, might be thought to suggest that a sentence of 23 years’ imprisonment with a non-parole period 18 years for the present offence is out of kilter with those sentences. Perhaps it is. But I think not, for reasons I shall come to shortly.
Before doing so, however, I note that, on the plea, both parties referred to what was said by Priest JA (with whom Maxwell P and Weinberg JA agreed) in DPP v Daing.[16] This was an unsuccessful appeal by the Director against a sentence of 18 years and six months’ imprisonment with a non-parole period of 14 years and six months imposed for murder. Mr Daing had pleaded guilty to murdering his partner by beating her to a pulp and ultimately killing her with a bar stool. He had suffered “cruel, at times inhuman, deprivation and social disadvantage” during his upbringing in Sudan. From the age of 11, he had been beaten daily, raped and forced into servitude. He had a strong work record in this country, to which he came as a refugee at the age of 14. At the time of the offence, his judgment, social reasoning and decision-making faculties were impaired to some degree as a result of his condition of post-traumatic stress disorder (“PTSD”). The sentencing judge found that, as a result, Mr Daing’s moral culpability was reduced to a moderate extent and that his mental health problems would make prison more difficult for him. The sentence was described by Priest JA as “undoubtedly lenient [but] not manifestly inadequate” and as “at the lower end of the available range … [b]ut … within range”.[17]
[16]DPP v Daing [2016] VSCA 58.
[17]DPP v Daing [2016] VSCA 58 at [41] & [46] (per Priest JA).
In dismissing the appeal, his Honour went on to say this:[18]
[46] … As was observed in McPhee:[19]
Every single human situation is unique, and the sentencing judge’s instinctive synthesis involved a distillation of numerous individual factors into an appropriate head sentence and non-parole period. It must be remembered that the exercise of the sentencing discretion does not involve the application of a mathematical formula. Reasonable minds can, and do, differ as to their assessment of an appropriate sentence for criminal offences. For offences such as murder which, as a matter of course, attract very substantial sentences, the variations between the sentences which might be imposed by different judges will necessarily be greater. The maximum penalty for murder is life imprisonment. The median sentence imposed during the period 2007/08 to 2011/12 was 19 years. As such, and recognising that there is no mathematical rule, one could expect a variance in the order of at least some three to four years in the sentences that different judges would impose for particular offending by a particular offender. In order for an argument of manifest [inadequacy] to be successful, the excess must be ‘obvious, plain, apparent, easily perceived or understood and unmistakable. It must be so far outside the range of a reasonable discretionary judgment as to itself bespeak error’.
[47] McPhee, and sentences imposed in other cases of the murder of domestic partners, raise an important question as to whether current sentencing practices adequately reflect the seriousness with which such cases generally ought be viewed. Indeed, it might be queried whether, generally speaking, the ‘tariff’ for such killings is not too low. If there is to be an increase in the prevailing sentencing standards for the murder of domestic partners, however, it must occur incrementally. With that in mind, this case does not present an appropriate vehicle to examine that question.
[18]DPP v Daing [2016] VSCA 58 at [46]-[47] (per Priest JA) (footnotes omitted in part).
[19]McPhee v The Queen [2014] VSCA 156 at [8] (Redlich and Priest JJA) (footnotes omitted from this passage).
There are several things to be said about his Honour’s remarks and the parties’ submission about them. First, I respectfully agree that it may well be that current sentencing practices for murder of domestic partners (whether former or present) do not adequately reflect the seriousness with which such cases generally ought to be viewed. I made this view clear to counsel on the plea.
Secondly, however, as I understood them, both parties considered that it was open to me to sentence adequately in the present case without seeking to depart from current sentencing practices.
Thirdly, Ms Coghlan submitted that, while I must still have regard to current sentencing practices, and while the Director was not urging a departure from such practices, nevertheless I would not be constrained to sentence in accordance with such practices if I considered that they were inadequate to reflect the seriousness of the current offence.
Fourthly, while it may be that a trial judge has the authority to depart from what he or she regards as current sentencing practices in order to do justice in a particular case, I think the Court of Appeal is better placed to answer questions such as whether such practices are inadequate and, if so, whether they should be altered and, if so, by how much or in what way. Further and in any event, I do not think I should presume to embark upon a consideration of any such questions without detailed and reasoned submissions from the Director and the accused as to why I should or should not undertake such a task.
Fifthly, as was said in McPhee, the exercise of the sentencing discretion does not involve the application of a mathematical formula and reasonable minds can, and do, differ as to their assessment of an appropriate sentence for criminal offences. As it happens, having had regard to current sentencing practices for murder generally and for murders with similar features to the present case, I am satisfied that the sentence I intend to pass is consistent with those practices.
There are many significant differences between the cases to which I was referred and the present case that adequately explain the differences in sentences imposed, particularly when regard is had as well to the view that reasonable minds can, and do, differ as to the appropriate sentence in any case. To take Daing as just one example, it is plain that there were special features of that case that compelled a substantially lower sentence than otherwise. Those factors included Mr Daing’s history of “cruel, at times inhuman, deprivation and social disadvantage”, his PTSD and its impact on his moral culpability and the hardship of imprisonment. While neither Daing nor the present case have the aggravating feature present in some of the more serious examples of such murders – namely, that they are committed in the presence of children of the relationship – it strikes me that the present case involves a significantly more serious example of the offence. In particular, as brutal as the killing was in Daing, it seemed to be more spontaneous and did not appear to involve the same putrid motive to kill, the same sense of prerogative to take a life, the same chilling decision to resort to a knife after an opportunity to desist, the same attempt to cover up the crime or the same disturbing behaviour in placing a rose beside the deceased’s body.
Now, in considering Daing and the other cases, I have been careful to recognize that, in sentencing, it is almost always difficult usefully to compare other cases anyway. No two cases are ever truly alike. And, in any event, sentences are not precedents to be distinguished or applied. Rather, it is the application of principles to findings of fact that is the major driver in sentencing. That is what I have sought to do, recognizing that one of those principles is the statutory injunction to have regard to current sentencing practices.
Sentence
I turn now to sentence.
Mr Banek, please stand.
As I have indicated already, balancing all factors as best I can, for the murder of Abuk Akek, Makeny Banek is convicted and sentenced to 23 years’ imprisonment with a non-parole period of 18 years.
While all factors – both mitigating and aggravating – have affected the head sentence as well, I have fixed a shorter non-parole period than otherwise principally on account of Mr Banek’s full admissions, early plea of guilty, youth and prospects of rehabilitation. I hope that he will be motivated in prison towards serious reform so that his chances of being released at the completion of his non-parole period are increased and so that, if released at that time, he is supervised for a substantial period in the community. That he might be so motivated should redound to the benefit of the community. Of course, whether and, if so, when he is released on parole will be a matter for the Adult Parole Board.
Pursuant to s 18 of the Sentencing Act, I declare that 326 days (including today) be reckoned as served under this sentence.
I note that, had he failed to confess, pleaded not guilty and run a trial, it is likely that I would have found that Mr Banek had no remorse at all and lesser prospects of rehabilitation. Thus I can declare, pursuant to s 6AAA of the Sentencing Act, that, but for Mr Banek’s confession and plea of guilty, I would have imposed a sentence in the order of 28 years’ imprisonment with a much heavier non-parole period of 24 years.
Disposal order
Finally, the Director applied for a disposal order in respect of various items, including the knife used by Mr Banek. The application was not opposed. In those circumstances, I shall make the order.
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