CRIMINAL LAW — Sentence — Manslaughter by unlawful and dangerous act — Single stab wound to abdomen — Unprovoked attack — Public place — Intoxication — Disputed fact — Generalised Anxiety Disorder — Substance Use Disorder — Limited criminal history — Guilty plea — Genuine remorse — Good rehabilitation prospects — General deterrence, denunciation and just punishment important — Specific deterrence and community protection less important — R v Verdins (2007) 16 VR 269 — Crimes Act 1958 (Vic) — Sentencing Act 1991 (Vic).
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APPEARANCES:
Counsel
Solicitors
For the Prosecution
K Hamill
Office of Public Prosecutions
For the Accused
J Munster Z Menon
Victoria Legal Aid
HIS HONOUR:
Introduction
Duldong Deng Majiok, on 10 October 2022, you pleaded guilty to the offence of manslaughter. In St Kilda, on 27 and 28 October 2021, you killed Yohana Apai.
The maximum penalty for the offence of manslaughter is 25 years’ imprisonment.
Background
Mr Apai was 24 years of age at the time of his death and lived in Brunswick. He was born in Sudan, and migrated to Australia when he was a child with his parents and five siblings.
At the time of Mr Apai’s death, you were 23 years of age and were living in Traralgon with your mother. You and Mr Apai were not known to each other.
Circumstances of the offending
Events prior to the offence
At 5:39pm on 27 October 2021, Mr Apai arrived in the St Kilda area in his car, parked and walked in the direction of the St Kilda foreshore.
Meanwhile, you and a friend Adhel Adhel [‘Adhel’], also drove to the St Kilda area. As it happened, at the time of these events you were on bail awaiting trial in the County Court on one charge of armed robbery, three charges of robbery, one charge of affray and one charge of theft. It was a condition of your bail that you not leave your place of residence between 9:00pm and 6:00am.
At approximately 8:25pm, you arrived and got out of your car and walked with an associate towards the St Kilda foreshore area.
At approximately 8:42pm, you, in company with another associate, Maker Mayoum [‘Mayoum’], and with another male, walked north along the Bay Trail. Over the period that followed, a number of movements of you and Mr Apai and other relevant persons were captured on CCTV footage in the area where the later events happened.
You, in the company of Mayoum, Eskinder Albera [‘Albera’] and Laula Wai [‘Wai’], walked around the general area before going to the St Kilda foreshore.
By approximately 9:30pm, you, Mayoum, Albera…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
R v Deng [2023] VSC 257
Case
[2023] VSC 257
Decision Date
CaseChat Overview and Summary
The case of R v Deng involved a dispute between the Crown and the defendant, Deng, who was charged with manslaughter. The court was tasked with determining an appropriate sentence for Deng, who had pleaded guilty to the crime. The incident in question involved an unprovoked attack in a public place, where Deng inflicted a single stab wound to the abdomen of the victim, resulting in their death. The attack was deemed unlawful and dangerous, and Deng's level of intoxication at the time was a disputed fact. Deng had a history of substance use disorder and generalised anxiety disorder, and while he had a limited criminal history, the nature of this offence was particularly severe.
The primary legal issues that the court had to address included the significance of the crime's severity, the role of intoxication, the relevance of Deng's mental health conditions, and the importance of factors such as general deterrence, denunciation, just punishment, specific deterrence, and community protection in determining an appropriate sentence. The court also considered the defendant's guilty plea, genuine remorse, and good rehabilitation prospects. In reaching a decision, the court referred to relevant statutory provisions and previous case law, such as R v Verdins, to guide its analysis.
In delivering the judgment, the court acknowledged the gravity of the crime, noting that the attack was unprovoked and occurred in a public place. The court found that general deterrence, denunciation, and just punishment were particularly important considerations in this case. While acknowledging the importance of specific deterrence and community protection, the court placed less weight on these factors due to the defendant's limited criminal history, genuine remorse, and good rehabilitation prospects. The court also considered Deng's mental health conditions and level of intoxication but found that these factors did not significantly mitigate the severity of the crime. Ultimately, the court determined that an appropriate sentence would reflect the importance of the aforementioned factors and imposed a sentence accordingly.
The court ordered that Deng be sentenced to a period of imprisonment, with a non-parole period set at a specific duration. This decision aimed to balance the need for general deterrence, denunciation, and just punishment with the mitigating factors present in Deng's case. The court's judgment provides valuable guidance for practitioners in understanding how various factors are weighed in sentencing for manslaughter cases involving intoxication and mental health issues.