R v Chiol
[2010] VSC 512
•25 October 2010
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 0015 of 2010
| THE QUEEN | |
| v | |
| GUMA CHIOL | Accused |
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JUDGE: | COGHLAN J | |
WHERE HELD: | Melbourne | |
DATES OF HEARING: | 26-30 July 2010, 27 August 2010 | |
DATE OF SENTENCE: | 25 October 2010 | |
CASE MAY BE CITED AS: | R v Chiol | |
MEDIUM NEUTRAL CITATION: | [2010] VSC 512 | Amended 16 November 2010 |
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CRIMINAL LAW – Causing Serious Injury Recklessly – Guilty Plea – Sudanese Cultural Considerations – Offending at lower end of seriousness – Intellectual deficit – Sentencing Considerations .
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr T. Gyorffy | Office of Public Prosecutions |
| For the Accused | Mr D. Drake | Theo Magaziz & Associates |
HIS HONOUR:
Guma Chiol, on 26 July 2010 you pleaded not guilty before me to the attempted murder of Gabriel Ferdinan Expetito. You also pleaded not guilty to the alternative counts of causing serious injury to Mr Expetito either intentionally or recklessly.
On the fourth day of the trial your counsel, Mr Drake, sought to have you re‑arraigned on count 3, causing Mr Expetito serious injury recklessly. On re‑arraignment you pleaded guilty and Ms Hassan, who appeared on behalf of the Director of Public Prosecutions, accepted that plea. Accordingly, I entered verdicts of not guilty to counts 1 and 2 on the indictment.
The events which bring you here occurred on 26 June 2009. You had come down to Melbourne from Canberra after making a number of threats over the telephone to and towards or about Mr Expetito. You felt hostile toward him because you thought that he was having, or attempting to have, a relationship with Noura Douka whom you regarded as your partner and whom you wished to marry. You and Noura Douka were the parents of a baby girl who is now three years old. You had not married because Ms Douka's mother was opposed to it. Your relationship with Noura Douka had begun in 2005 when she was a student in Year 10.
Late in 2006 you moved to Canberra for reasons which are not at all clear, however may be related to the fact that during that year you had been sentenced to a suspended sentence of one month imprisonment for driving whilst your licence was suspended. That is your sole prior conviction. I attach little weight to it for the purpose of this sentence.
I assume, as I commented on the plea, that the suspension of your licence arose out of the fact that you were working driving taxis. It may have been that you went to Canberra so that you could continue that work, as you have done, apparently quite successfully.
Ms Douka visited you in Canberra and you visited her here in Melbourne. She came to Canberra for months at a time. You spoke to her on the telephone often and for long periods of time.
During the early part of 2009 there were difficulties in your relationship. I suspect that Ms Douka regarded you as being rather possessive and she sought to end your relationship. You wished to continue the relationship and did not regard it as being at an end.
You regarded Mr Expetito as an interloper who had no right to be trying to involve himself with your "wife", as you regarded Noura Douka.
At that stage Mr Expetito, on his own evidence, was providing substantial assistance to the whole of Noura Douka's family ‑ her mother, her two sisters and herself ‑ in the absence of any other male support in that family. He denied any inappropriate relationship with any of the female members of the family but your perception of the matter was otherwise and it is reasonable to say that Mr Expetito did find Ms Douka attractive.
It also seems reasonable to say that after much discussion involving threats over the telephone and some visits to Melbourne, you decided to come to Melbourne to have it out with Mr Expetito. On 25 June 2009 you told him over the phone that you were coming to Melbourne to stab him. Mr Expetito reported the matter to the police twice over the next twelve hours but that did not lead to any direct police involvement. They did contact you but that did not have any apparent result. The police simply returned Mr Expetito’s call and said that you had told them you were a friend of his.
According to Mr Expetito, he spent the night of 25 June 2009 in his car because he was afraid to go home. He says that you spoke to him several times on the phone. He said that when he did return home at about 8 am on 26 June 2009 he saw your car in the driveway and drove off. He said that you pursued him. He again called the police but could not speak to them and instead drove to the Sunshine Police Station. He did not enter the police station or speak to the police but soon after drove to the Douka home to pick up Noura’s mother and her two other daughters. He was to take Noura’s mother to Dandenong and the girls to school. Those events, in their own right, appear to be somewhat remarkable and why Mr Expetito would not have gone into the police station, having got there, remains one of the unexplained matters in this case.
Mr Expetito did collect Noura’s mother and the two girls at about 9 am. He began to drive west along Wilmott Drive in Hoppers Crossing. Mr Expetito said that as he was doing so, he saw you driving your car towards him. The two cars stopped and you and Mr Expetito got out. You told him to stay away from Noura and a fight followed in which both of you were armed with tree branches which had been cut or had fallen from a nearby tree or trees. You lost the tree branch that you were using and then produced a knife. Whether or not that occasion was the first time you produced the knife is not capable of resolution. You turned towards Mr Expetito with the knife. You stabbed at his stomach and struck his shoulder and throat. The wound to the throat required a number of stitches and the stab wound to the shoulder which was about 2 or 3 cm long and about a centimetre deep, also required suturing.
Mr Expetito remained in hospital for about four days. He has recovered well from his injuries but has some residual scarring on his throat which worries him. He did provide (and I have read) a victim impact statement. The effects this event has had on Mr Expetito have been severe and he has not worked since the incident. I have taken the view, however, that all of the consequences cannot necessarily be visited upon you.
After the stabbing, you chased Mr Expetito for a short distance and then returned to your vehicle. You went immediately to the Sunshine Police Station and although you admitted stabbing Mr Expetito, you claimed to have acted in self‑defence. I am satisfied that it was your perception there was an element of self‑defence in this matter. It might best be seen in the light of a passage quoted by Ms Pamela Matthews, a forensic psychologist, who examined you and who provided a report dated 20 August 2010 to the court in which she said:
In Dinka culture marriage is important to form bonds between families and to make sure a family name is carried on. A Dinka man can have as many wives as he likes as long as he has enough cattle to pay for each one he wants to marry. A dowry which can run to 100 to 150 head of cattle is often contributed to by the whole family. After the marriage has taken place, the woman becomes more or less property of her husband's family and if her husband dies, a brother‑in‑law, an uncle, in fact whomever the family decides, will then inherent her. A young woman is expected to have children with her newly assigned guardian but all newborn children will carry the name of her deceased husband. A family can even marry a woman for a man who has lost his life long before. She is regarded as being a widow from her wedding day and is instantly passed on to another male family member, the objective being, like her children, [sic] will carry the name of the man who never managed to have children of his own. Like other Nilotics, sex among Dinka is only for social reproduction, thus fornication is prohibited. Adulterers are despised and heavily fined. Sometimes this may be source of conflict and clan fighting. Incest is usually unimaginable and indeed abhorred.
Although I do not take the view that your own beliefs are absolutely governed by the matters set out in that paragraph, it does reflect in part on the strong views that you have about the subjects of marriage and children, of the value and nature of relationships and, perhaps more importantly, the prospective treatment of adulterers within the community. Your offending has to be seen in such context.
On your plea I received a number of references. I received a letter from MAX Employment; a letter from Phillip Akau from the Sudanese Australian Association; a letter from Steve Whiteman, your employer; a letter from the Sudanese Community of Australia; and a letter from Benjamin Mahore (undated) who is your brother. All of those references were strongly favourable to you and demonstrate that you have done your best to support yourself as best you can in the community by continuing to work. I accept the proposition that you want to better yourself by further education.
Whilst you were in custody prior to your release on bail, you completed a series of certificates which were tendered and I have noted their contents.
Another matter that was put to me on the plea and about which I received evidence is that one of the things you have done with the money that you have received is, on a very regular basis, sent it back to Sudan to support your family and others who remain there.
I will go into detail regarding your background, which will involve covering some of the matters that I have already mentioned but which bear repeating.
Background
You count 1 January 1985 as your birthday. You were born in a small village called Mehroe in Sudan. You are now 26 years of age. You are the youngest child of your family and have two brothers and two sisters still living. Your father died when you were two years old and your mother when you were four or five. Your childhood memories are of a frightening and terrifying time. You were, after the death of your parents, taken into the care of an aunt and you had to support yourself as best you could at the age of four, five or six. Your aunt was married and had many children and consequently you were accepted into the family. You lived with them in a town called El Hagasi which you describe as a larger town where there were many unemployed and under‑employed persons. Sanitation was poor. There were many refugees there. Death through starvation and other injuries sustained in war are quite common. (This part of your life was during a period of civil war in Sudan where the Dinka people were very harshly dealt with.)
In such conditions, despite being five or six years old, you were expected to do what you could to contribute to feeding the family. Your first job was as a water boy, selling cups of water to people in the market. What money you made went back to your aunt and uncle and that was pooled together and used as part of the moneys sustaining the family. You were regularly sleeping at the market in the company of other young boys like yourself. You describe your life then as very hard and sad and dominated by the fear for your own safety. I accept those feelings.
When you turned eight, your older brother died and at that time you were able to move in with your sister. A bond existed between you and she which was closer than the previous bond that had existed with your aunt. Your sister had recently married and had no children. Her husband was the head of a team of workers in the cane fields. At the age of seven or eight you were introduced to cane cutting. You would cut, collect and cart it to a central location. Your counsel told me of one occasion where a farmer who owned the property beat you so badly that you were taken to hospital unconscious. Your memories of being with your sister's family are of a better time than that spent living with your aunt. While living with your sister, you were able to buy clothes and you were sent to school.
Your brother, Benjamin, subsequently took over your care when you were aged about nine. At this time Benjamin was the oldest male in your family and upon his marriage you were able to live with him. During your time with your brother, he and his wife had three children. You stayed with Benjamin and his family until you were about 15 years of age. At that time the whole family escaped from Sudan to Egypt in the hope of gaining refugee status, which in fact occurred. From Egypt, your brother Benjamin, his wife, his children and you made arrangements to come to Australia and arrived here when you were 17.
Upon arrival in Australia you attended an intensive language school and were able to find work as a labourer with your brother at a rubber company. You worked as a machine operator making rubber products and you apparently enjoyed that work. You got on well with the other employees and stayed there for some two‑and‑a‑half years working alongside your brother. You continued classes in English at TAFE and whilst there got a job on the production line in a chocolate factory. Whilst employed there, you completed computer courses and obtained relevant certificates. It was during that time that you met Noura Douka.
Your relationship with Noura was described as very important by both counsel as well as Ms Matthews in her report. On p.6 of her report Ms Matthews says this:
Secondly, there are development issues which fall into three parts arising from childhood which, in the writer's view, has a direct connection to the offending now considered by the court:
(a)Mr Chiol has a childhood history of exposure to violence and brutality as a means of solving conflict which has provided the template for the resolution of his conflict with the victim;
(b)Mr Chiol's cognitive skills are impaired and this would impact in a day‑to‑day sense on his problem‑solving insight and judgment; and
(c)Probably the most significant factor of all, Mr Chiol has a history marked by significant attachment lost. Ms Douka was a significant attachment figure in his life since the age of four years. The intensity of the violence in this matter, in the writer's view, reflects the intensity of distress he felt at her loss.
Early in your relationship, Noura fell pregnant. Counsel explained that due to ethnic origin and religious beliefs, namely that you were Dinka and Christian, Ms Douka's mother would not permit marriage as her daughter was not Dinka and was of Muslim faith. In any event, although that was so, you were permitted to take Ms Douka to Canberra where you spent time together during her pregnancy. As the baby's birth approached, Ms Douka's mother requested Ms Douka return to Victoria where she went to live with her mother and you went to live with your brother. You had, shortly prior to meeting Ms Douka, a brief relationship with a girl named Vivienne who gave birth to a baby boy shortly prior to your daughter Yar being born to Ms Douka. You therefore had two newborn children. You assumed responsibility for both young women and continued to provide support for both women and children.
I note also, that whilst you were in custody, you were assaulted and suffered the loss of several teeth.
In the psychological assessment from Pamela Matthews she further says:
In the community the writer would recommend a referral to Foundation House for treatment pathology arising from your development years and regeneration back into the Dinka community.
The details of the service in Canberra are available and I strongly recommend to you that you take up such opportunity as can be taken up. It is not possible for me to impose a condition forcing you to do so but I strongly suggest it to you, and Mr Drake will reinforce it to you before you leave here today.
One other matter that is of great importance to what is to happen to you is what Ms Matthews concluded after conducting various tests upon you and, in particular, a test directed towards establishing your nonverbal intelligence. She said this in her report:
On this administration Mr Chiol's IQ was assessed at 72, falling between 66 and 78 of the 95 per cent confidence interval. The overall level of functioning is borderline and is age equivalent to mid‑primary school levels of functioning.
Diagnosis and Opinion.
Mr Chiol is a 26‑year‑old man of Dinka ethnic origin who has resided in Australia for approximately eight years. He tells a tragic and hard developmental history of raising himself from the age of four years after losing his entire family through death or separation as a result of civil war in the Sudan. He presents with depression of moderate to severe degree which may have a situational component but is also, in the writer's view, related to his history of attachment losses and development exposure to violence, abuse and deprivation. It would appear that since arriving in Australia he has used alcohol to self‑medicate for depression and as such has become alcohol dependent. He also presents as being cognitively impaired on a test of nonverbal intelligence which is not culturally loaded. His story suggests his cognitive impairment is likely to be development environmental and may be acquired in nature.
You do represent a difficult sentencing problem for me, but having regard to the intellectual deficits which I accept that you have, the very difficult background with which you present and attempting to give some weight to your cultural background in assessing the nature and seriousness of this offending, I have decided that a sentence which will be fully suspended apart from the time that you have already served in custody would be appropriate in your case.
I do, however, make the following findings. I do not make and specifically refrain from making any finding adverse to Mr Expetito with regard to whether or not he was involved in any relationship with any member of Noura Douka's family. I find that the offence, as an instance of the crime of recklessly causing serious injury, is toward the lower end of offending of that kind. I so find based on your history of work since you have come to Australia, and I think you now have a better understanding of these things than you did at the beginning of these matters. I regard your prospects of rehabilitation as being good. It is in those circumstances I now move to sentence you. If you would stand up, please.
On the count of causing serious injury recklessly you are sentenced to be imprisoned for three years. I order that all but 162 days of that sentence be suspended.
MR GYORFFY: Your Honour, I should point out that there has been a mistake in that, it should actually be 167 days. There was some period immediately after arrest that hadn't been included.
HIS HONOUR: Thank you very much, Mr Gyorffy.
I order you to be imprisoned for three years and direct that all but 167 days of the sentence be suspended. I order that 167 days be reckoned as already having been served under this sentence and direct that this declaration and its details be entered in the records of the court. That means you will be free to leave the court today. I order that the operational period of the sentence be for a period of three years.
You need to understand this, Mr Chiol. It means for the next three years you cannot get into any trouble at all. If you get into any trouble you will come back before me and the consequences of that are three years in gaol. It is there, it is over your head, it is a reminder to you every day over the next three years that being of good behaviour is important.
You should go and see the people in Canberra at the centre. Their details are: The Migrant and Refugee Settlement Services at Level 2, North Building, 180 London Circuit, Canberra. That is in the centre part of Canberra. You are a taxi driver, you will know where it is.
I suspect this conviction and this sentence will make it very difficult for you to continue work as a taxi driver so you will have to find some other work but I think you are in contact with people about that and it is an opportunity for you now to get on with your studies.
It is important to understand things that might have been all right in Sudan will not be all right here so you have got to handle things in accordance with the way that we do things.
I do not know whether I need to do this. I can only say in relation to s.6AAA that if you had not pleaded guilty to this offence I would have imposed a sentence which was of an immediate custodial effect while having regard to the fact that the head sentence of three years I would regard as being appropriate in the circumstances. For a plea I don't know what I would have done at the end of a trial. If I am required to do so, I would say that if this had been a conviction that had been obtained at the end of a trial, a complete trial, I would have imposed a sentence of four years with a non‑parole period of two‑and‑a‑half years, doing my best.
But I make it clear that in all the circumstances of the case this struck me, because of the whole of the circumstances of it, one in which a somewhat merciful sentence, if that is what it be, was merited.
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