R v Deng
[2023] VSC 257
•2 May 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2022 0208
| THE KING | Crown |
| v | |
| DULDONG DENG | Accused |
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JUDGE: | CHAMPION J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 2 March & 6 April 2023 |
DATE OF SENTENCE: | 2 May 2023 |
DATE OF RULING: | 16 May 2023 |
CASE MAY BE CITED AS: | R v Deng |
MEDIUM NEUTRAL CITATION: | [2023] VSC 257 |
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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 and Wai were in the South Beach Reserve area of the St Kilda foreshore, when a fight broke out between several men. You and Mayoum stood and watched the fight. At one point, one of the males fell to the ground and you assisted him in getting back onto his feet. Wai jumped into the fight and appeared to be trying to break it up. Police arrived and you and your associates ran from the scene.
Shortly after 9:30pm, you, Mayoum, Albera and Wai walked to the rear of the Stokehouse Restaurant and the St Kilda Life Saving Club, where you were seen speaking to a number of people.
Between approximately 10:38pm and 11:12pm, Mr Apai was also in the vicinity of the St Kilda Life Saving Club speaking to various people, mainly a group of females.
At approximately 11:04pm, one of the females from the group to whom Mr Apai was speaking approached your associate, Mayoum. She spoke to him while she gestured in the direction of Mr Apai. A few minutes later, you spoke with another male before punching the male once to the face. Some of your associates and other males at the scene separated you both. You walked away from the group, returning about two minutes later with Mayoum.
Mayoum then approached Mr Apai and spoke to him, placing an arm around his shoulders and walking him away from the group. Mayoum and Albera directed Mr Apai towards Jacka Boulevard and Mr Apai began to walk up towards the road.
You saw Mr Apai and very quickly ran over to where he was walking. You ran ahead of him and stopped while he approached. When Mr Apai reached you, you began walking in the same direction as him, a short distance ahead of him.
As you both neared the entrance to the nearby public toilets, you turned and punched Mr Apai once towards his upper body.
It is at this point that the parties differ as to what occurred.
The disputed fact
The prosecution alleges that, after you punched Mr Apai towards his upper body, Mr Apai began to back away from you, seeking to extract himself from the situation. You allegedly threw a punch towards him, as he raised his hands in a defensive motion. The prosecution submits that this is relevant as it establishes that you were the physical aggressor in the lead up to the offence in question.
In contrast, the defence submits that the evidence does not support the allegation that Mr Apai immediately backed away from you. Rather, your counsel contends that Mr Apai lunged towards you, stumbled and only then backed away. The defence also submits that the evidence does not support the allegation that you threw a second punch at Mr Apai. It is submitted that your hand movement could be interpreted as you gesticulating or waving your arm.
The defence also contends that, at the time of your hand movement, both you and Mr Apai were “posturing and dancing around each other”. Your counsel submitted that Mr Apai did not raise his hands in a defensive motion, but instead raised only one hand as part of his attempt to square up to you. The defence seeks to characterise the incident as a joint altercation between you and Mr Apai, rather than an attack driven solely by you.
I will return to discuss these issues later.
The offence
The remaining circumstances concerning the offence appear to be largely agreed between the parties.
Mr Apai ran towards Jacka Boulevard, before looking back and walking towards the foreshore.
Around this time, a female intervened and grabbed at you. You disengaged with her, reached into your bag and removed a knife, holding it in your right hand whilst moving towards Mr Apai.
You then lunged towards Mr Apai as he was backing away from you onto Jacka Boulevard. You stabbed Mr Apai once to his stomach. He grabbed his stomach and stumbled forward onto the footpath, where he collapsed onto the ground. Your response was to run from the scene.
An off-duty police officer, Mehregan Abdollahbeigi was in the area at the time and observed a large group of males and females running towards Marine Parade. Mr Abdollahbeigi heard people saying “he has been stabbed”. Mr Abdollahbeigi ran to the front of the St Kilda Life Saving Club and observed Mr Apai lying on the ground with a stab wound to his stomach. He then alerted nearby patrolling police officers to the incident.
Mr Abdollahbeigi returned to Mr Apai with the other police officers and administered first aid. He kept telling Mr Apai to keep breathing, as Mr Apai said he could not breathe. Mr Abdollahbeigi asked Mr Apai questions about what had happened but Mr Apai continued to say that he could not breathe. Mr Apai also said that he was going to die.
Paramedics arrived shortly before 11:30pm. Mr Apai was then taken by ambulance to The Alfred Hospital.
Meanwhile, after fleeing the scene, you ran to the rear of the St Kilda Life Saving Club. You spoke briefly with an associate, before running around the other side of the club. Albera followed you and you both crossed Jacka Boulevard.
You and Albera then walked through the car park at the rear of the Palais Theatre, returning to the car you had arrived in, parked on Cavell Street. You and Albera were then joined by several other people. You both waited at the vehicle for approximately five minutes, before two other vehicles picked you both up and left the area.
Telephone records indicate that you travelled to Truganina, before returning to the Craigieburn area at approximately 1:42am on 28 October 2021.
Mr Apai’s death
Upon Mr Apai’s arrival at The Alfred Hospital, he was intubated and underwent a massive transfusion protocol. He was assessed as having a single stab wound to the left lower quadrant of the abdomen, measuring approximately 3 centimetres in length. Multiple points of haemorrhage within the peritoneum, multiple traumatic enterotomies (sharp force injuries to the bowel), and significant bleeding to the colon area were all identified.
Mr Apai underwent surgery and remained haemodynamically unstable despite aggressive blood product replacement. He underwent further surgery and despite ongoing aggressive resuscitation, adequate blood pressure could not be maintained.
A collective decision was made by doctors that it would be futile to attempt ongoing treatment and resuscitation. Mr Apai died at 9:59am in the operating theatre on 28 October 2021.
A post-mortem examination was conducted on Mr Apai’s body on 29 October 2021, and it was established that he had died due to vascular injuries sustained from a single stab wound to the abdomen.
The police investigation
Arrest and interview
On 5 November 2021, members of the Homicide Squad, with the assistance of the Special Operations Group, executed a search warrant at an address on Cradle Mountain Drive in Craigieburn. You and your associates Mayoum, Adhel and Albera were at the address at the time.
You were arrested and taken to the Melbourne West Police Station where you were interviewed. You gave “no comment” answers. You were charged and remanded in custody.
Mayoum, Adhel and Albera refused to cooperate with police or make statements. They failed to appear at compulsory examinations in the Magistrates’ Court and the hearings did not proceed.
Procedural history
Having been charged with murder, you offered to plead guilty to manslaughter in July 2022. Following this, on 11 August 2022, you were committed to trial for murder and entered a not guilty plea to that charge. However, on 29 August 2022, the prosecution accepted your plea of manslaughter, and on 10 October 2022 you were arraigned and formally entered your plea of guilty to manslaughter.
Resolution of the disputed fact
As outlined above,[1] aspects of the plea hearing were contested. The court is required to make some findings about these matters.
[1]See paragraphs 18-19 above.
Legal principles
Conventionally, the prosecution opening constitutes an agreed factual basis upon which a judge passes sentence.[2] However, where a factual assertion is contested, the contested fact must be proved by admissible evidence.[3] There is, however, no requirement that all the evidence be given on oath, nor that there should be an opportunity for cross-examination.[4]
[2]Formosa v The Queen (2012) 36 VR 679, 681 [8] (Whelan JA, with whom Osborn and Redlich JJA agreed), citing Ashton v The Queen [2010] VSCA 329, [22] (Hansen JA, with whom Redlich JA and Vickery AJA agreed); R v LFJ [2009] VSCA 134, [3] (Maxwell P and Kellam JA).
[3]Formosa v The Queen (2012) 36 VR 679, 681 [8] (Whelan JA, with whom Osborn and Redlich JJA agreed), citing R v Rumpf [1988] VR 466, 471.8 (McGarvie J, with whom Young CJ and Murray J agreed).
[4]Formosa v The Queen (2012) 36 VR 679, 681 [8] (Whelan JA, with whom Osborn and Redlich JJA agreed), citing Halden v The Queen (1983) 9 A Crim R 30, 33.9-34.2 (Lush J, with whom Murphy and Fullagar JJ agreed).
A sentencing judge may not take facts into account in a way that is adverse to the interests of the accused unless those facts have been established beyond reasonable doubt.[5] The sentencing judge must clearly state her or his findings and the effect they have, if any, upon the sentence:[6]
… when an issue of fact has arisen which carries all the hallmarks of a circumstance of aggravation and is being resolved by the sentencing judge not in favour of the accused, that person is entitled to know that the required standard of proof has been met and whether the particular circumstance forms part of the basis for the sentence imposed.
[5]Filippou v The Queen (2015) 256 CLR 47, 69-70 [64] (French CJ, Bell, Keane and Nettle JJ); Leach v The Queen (2007) 230 CLR 1, 18-19 [41] (Gummow, Hayne, Heydon and Crennan JJ); R v Olbrich (1999) 199 CLR 270, 281 [27] (Gleeson CJ, Gaudron, Hayne and Callinan JJ).
[6]R v Harding (2008) 50 MVR 413, 422 [38] (Lasry AJA, with whom Ashley and Dodds-Streeton JJA agreed).
Further, in Sultan v The Queen,[7] the Court of Appeal held that a sentencing judge cannot be satisfied beyond reasonable doubt as to the existence of a fact adverse to the accused unless there is either direct evidence to support the fact or the conclusion is the “only reasonable inference which could be drawn”.[8] Therefore, a failure by the accused to proffer a credible explanation for their conduct cannot, of itself, support an inference that their conduct was for a criminal purpose.[9]
[7]Sultan v The Queen [2022] VSCA 205.
[8]Ibid [44] (Kennedy and Kaye JJA).
[9]Ibid [47].
On the other hand, if there are circumstances which the judge proposes to take into account in favour of the accused, it is enough if those circumstances are proved on the balance of probabilities.[10]
[10]Le v The Queen [2019] VSCA 80, [81] (Beach, McLeish and Weinberg JJA); Formosa v The Queen (2012) 36 VR 679, 681 [8] (Whelan JA, with whom Osborn and Redlich JJA agreed), citing R v Storey [1998] 1 VR 359, 36.3 (Winneke P, Brooking and Hayne JJA, and Southwell AJA), which was quoted and approved in R v Olbrich (1999) 199 CLR 270, 281 [27] (Gleeson CJ, Gaudron, Hayne and Callinan JJ).
The evidence
The prosecution points to pieces of CCTV footage which bear on the matters in dispute. It is apparent from examining the material that parts of the footage are of low definition and somewhat blurry. One camera is also situated some distance from you and Mr Apai and, in my opinion, does not provide a clear or complete view of your actions. Further, the footage does not depict the events giving rise to the disputed fact in their entirety, as both you and Mr Apai move off-screen during the alleged second punch.
Findings
The prosecution’s allegations regarding Mr Apai’s behaviour and the supposed second punch are capable of being regarded as being adverse to you. If proven, matters suggest you were the physical aggressor in the leadup to the offence. Therefore, I must be satisfied the prosecution have proved these allegations beyond reasonable doubt.
Has the prosecution proved beyond reasonable doubt that Mr Apai backed away from Mr Deng and sought to extract himself from the situation?
I have reviewed the relevant footage and considered the submissions. It is difficult to interpret at times, but I am satisfied that you first punched Mr Apai, and he recoiled and hesitated momentarily. You then backed away from him while facing him, and Mr Apai then ran in your direction, bending forward as he passed you and a group of other people.
On the one hand, Mr Apai’s rapid movement past you is consistent with him trying to extract himself from the situation. However, on the other hand, his behaviour is also consistent with other explanations, including the narrative put forward on your behalf that Mr Apai lunged at you. The ambiguous nature of the footage is due, in part, to the fact that at this point Mr Apai’s body is partially obscured by the presence of other individuals at the scene.
In my opinion, there is reasonable doubt regarding the purpose of Mr Apai’s movements, such that the prosecution has not met the requisite standard of proof. Put plainly, the prosecution’s explanation is not the only reasonable inference that could be drawn from the footage.[11]
[11]Sultan v The Queen [2022] VSCA 205, [44] (Kennedy and Kaye JJA).
This, of course, does not mean that I should automatically accept the defence’s alternative explanation of Mr Apai’s conduct. I find the ambiguity of the footage is so great that the defence has also failed to meet the standard applicable to an accused.
Therefore, I must accept a neutral explanation of the events in question: that Mr Apai ran towards you, bending forward as he passed you and a group of other people. I am not prepared to find a reason why Mr Apai moved towards you, thus I draw no inference, whether favourable or adverse to you, in relation to this part of your conduct.
Has the prosecution proved beyond reasonable doubt that Mr Deng threw a second punch at Mr Apai?
Again, the footage in relation to this allegation is somewhat unclear. Nevertheless, the following movements can be discerned: namely, that after passing you, Mr Apai turned and faced you while continuing to move away from you; that you turned to face Mr Apai and moved rapidly towards him as you neared him; that your right arm extended away from your body so that it was outstretched; that Mr Apai moved his right hand up slightly and raised his left hand to the level of his head by continuing to move backwards; that you leaned forward as your right hand moved towards Mr Apai’s upper body; and that both of you then moved off-screen.
In my opinion, there is sufficient evidence to support the prosecution’s argument that you threw a second punch. First, the events described above are consistent with your initial punch to Mr Apai. You used the same hand and a similar swinging motion. Second, the alleged punch occurred within a very short time after you initially punched Mr Apai. In my opinion, it is unlikely you decided to cease your attack on Mr Apai within this short timeframe. Third, you moved rapidly towards Mr Apai, indicating you intended to confront him. You also swung your arm very wide and with considerable speed, which is consistent with striking a second blow.
The defence have submitted that reasonable doubt exists on the basis it is open to infer from the footage that you were gesturing or waving your arm. I do not accept this in the overall circumstances of your attack on Mr Apai. At the time you swung your arm, you appeared to be looking towards Mr Apai and not your associates. Had you been gesturing or waving your arm as a means of communicating with them, it is reasonable to expect that you would have looked at them. Further, your associates did not visibly react to your arm movement. They continued to walk some distance behind you and did not seek to immediately assist you. Moreover, the fact that Mr Apai had just rapidly moved past you and was now facing you supports the conclusion that your attention was likely fixed upon him, and not anyone else. In sum, the defence’s assertions do not raise a reasonable doubt.
Having considered the footage, I find no other reasonable inference can be drawn as to the purpose of your arm movement. In my opinion, the prosecution have therefore succeeded in proving beyond reasonable doubt that you threw a second punch towards Mr Apai.
As for Mr Apai’s movements at this point, I also find the prosecution has proven beyond reasonable doubt that he was raising his hands in a defensive movement. Although Mr Apai’s right hand moves out of frame during the assault, it is clear that he was in the process of raising it. His left hand was also elevated to head height, with an open outstretched palm. This is consistent with him trying to block your punch. Mr Apai also moved back sharply at the point your fist neared his upper body, which suggests he was ducking. The submission that Mr Apai was shaping up to you is inconsistent with these motions. I am therefore satisfied beyond reasonable doubt that Mr Apai adopted a defensive position in response to your second punch.
I also do not accept the argument that you and Mr Apai were posturing and dancing around each other in some mutual manner. In my opinion, you were the overall aggressor from start to finish, and he was mostly moving away from you.
Having made these findings, in my opinion, they are, however, ultimately of little import to the assessment of the appropriate sentence to be passed. It is common ground between both parties that you were the primary physical aggressor, commencing the assault upon Mr Apai at a time when he did not pose any physical threat to you. In my opinion, he did not appear to pose a threat to you at any time.
Victim Impact Statements
I received 13 Victim Impact Statements from Mr Apai’s family and members of the Luo community of which he was a part.
Mr Apai’s parents
Mr Apai’s parents, Marko Apai Urbano and Lucia Phillip Mawien, stated that the loss of their son had been devastating and heartbreaking. They described fleeing Sudan (and later, Egypt) because of instability and hardship. Both of Mr Apai’s parents hoped that settling in Australia would provide safer and better lives for their children. However, the death of their son has had a terrible impact on their whole family. Mr Apai’s father describes feeling abnormal and experiencing recurring dreams about his son. Both he and his wife regularly break down in tears, and describe their other children as being deeply affected by the loss of their brother.
Mr Apai’s siblings
Mr Apai’s siblings, Luwis Apai, Ajur Apai, Manheim Apai and Joseph Apai each provided a statement about the loss of their brother.
Luwis Apai, Mr Apai’s eldest brother, told the court that the death of his sibling had left him emotionally traumatised. He stated this emotional turmoil was a key reason for the subsequent loss of his job. Luwis described experiencing anxiety, shame and a loss of confidence following the death of Mr Apai, particularly after seeing the CCTV footage of Mr Apai’s stabbing.
Ajur, Mr Apai’s younger sister, stated that the death of her brother had caused her to feel deeply fearful, despite living in a country in which she believed she should feel safe. She told the court that the loss of Mr Apai had changed her life forever and inflicted a colossal amount of trauma on her family.
Manheim also described being left devastated by Mr Apai’s death. He was 15 years old at the time, and found it difficult to believe his older brother had died. Manheim told the court that Mr Apai was organised, responsible and a role model for his siblings. He described bonding with his brother over basketball and through conversations about their respective lives.
Joseph, Mr Apai’s youngest brother, reiterated many of the sentiments of his older brothers. He stated that the death of Mr Apai had left him traumatised and made him lose faith in society. At the time of Mr Apai’s death, he was 12 years old. He feels the absence of Mr Apai deeply and wishes he could see him once more.
Mr Apai’s extended family
Deng Otong, Mr Apai’s uncle, told the court that Mr Apai was a very important person in his life. Mr Apai provided support to Mr Otong and his family, by assisting Mr Otong in recovering from a workplace injury. Mr Otong stated that Mr Apai was highly intelligent and maintained strong relationships with his extended family. His death has made it difficult for Mr Otong to enjoy life and family celebrations. Mr Otong also stated he struggles emotionally and finds it difficult to complete routine tasks without the assistance of Mr Apai.
Fawlo Apai and Alberto Dimo, two cousins of Mr Apai, also provided statements to the court. Fawlo stated that Mr Apai was like an elder brother, providing encouragement and guidance. Mr Apai would meet with Fawlo on a monthly basis and regularly made the effort to watch Fawlo’s sporting events. Fawlo stated that Mr Apai’s death had left him feeling heartbroken, as he believed Mr Apai had a bright future ahead. Similarly, Mr Dimo told the court that Mr Apai was a role model to people in his family. He and his wife are deeply affected by Mr Apai’s death, and now worry for the safety of their own children.
Mr Apai’s friends and Luo community
Ethan Zagorc, a childhood friend of Mr Apai, described his deep sense of loss at Mr Apai’s death. He viewed Mr Apai as an ambitious, confident and compassionate young man, who had much to offer the world.
Jacqueline Atieno, a friend of Mr Apai’s family, told the court that Mr Apai’s death had left her feeling worried about the safety of her own son. She described feeling angry at the loss of Mr Apai, as he was young and she believed he had a bright future ahead of him. Ms Atieno stated that she would miss regular visits from Mr Apai and his presence at community gatherings.
Various statements were also received from members of the Luo community to which Mr Apai belonged. George Nielo, the chairperson of the Luo Community Association of Victoria, stated that Mr Apai’s death had greatly impacted the entire Luo community and caused its younger members to feel unsafe in Australia. Authao Dutmalloal told the court that Mr Apai’s loss was felt deeply by many, as Mr Apai had been a reliable and friendly volunteer in the Luo community.
Summary
It is clear from the Victim Impact Statements lodged with the court that Mr Apai was a much-loved son, brother, friend and community member. He played a significant role in the lives of many, and appears to have been a role model for other young people. Many of the statements depict him as a man with good prospects, who had much to offer the world. His loss has had a profound impact on those who knew him.
Personal circumstances
You were 23 years old when you killed Mr Apai. You are now 24.
You are the eldest in a sibship of five. You were born in South Sudan in 1998, during a time of great civil conflict. Your first language is Nuer. You and your parents fled South Sudan soon after your birth. They lived in refugee camps until arriving in Australia on humanitarian visas in 2002, when you were aged four. These experiences were traumatic and characterised by violence and significant instability.
Upon arrival in Australia, your family settled in Melbourne. They later moved to Adelaide, then to Melbourne and then to regional Victoria. Your four siblings were all born in Australia.
In 2011, your mother and father separated. You have had no contact with your father since then. You report he was responsible for family violence. You describe being beaten by him on many occasions, and witnessing him abuse your mother. I understand that, as the eldest child, you took on some parenting responsibilities following your parents’ separation. Your mother works seven days a week as a meat process worker to support you and your siblings. You report continuing to have strong relationships with your mother, siblings and extended family.
In terms of your education, you completed Year 12 successfully, with good academic performance during your schooling. However, you are said to have experienced a sustained amount of harassment that was rooted in racism.
After finishing school, you worked in various roles in an equipment-hire business, and then in warehousing and logistics. The longest you have maintained a job for is five months. In 2019, you were working as a driver for a logistics company and lost your license for a driving matter. As a result, you have since struggled to find employment.
However, I understand that you have demonstrated an aptitude and desire to work. While in custody you work as a billet five days a week.
You also have a history of substance abuse, which began in your teenage years. You commenced using Xanax without a prescription at the age of 17, which you became physically dependent on. You also have a history of alcohol use, including to the extent of intoxication and memory loss. You have also used other illicit substances, albeit more sporadically.
As to your social life, you have a history of pro-social connections. You played basketball at a high level as a teenager, were involved in your local church and were invited to mentor other young church members. Since being in custody, you have continued to maintain connections with your community and have sought spiritual advice.
You also report having had three romantic relationships in the past. You separated from your most recent partner in 2020, but have remained in regular and friendly contact with her.
Criminal history
You were on bail at the time of the offence, awaiting trial in the County Court on one charge of armed robbery, three charges of robbery, and one charge each of affray and theft. The charges of armed robbery and robbery were later discontinued, and you pleaded guilty to affray and theft.
Otherwise, your criminal history is limited and minor.
Mental health
The court received a report from Mr Patrick Newton, a forensic and clinical psychologist, dated 7 February 2023. A supplementary report dated 19 February 2023 was also provided by Mr Newton.
In his initial report, Mr Newton observed that you had reported a significant history of anxiety-related problems that commenced as a young child when you were a refugee. He is of the opinion that the family violence in your home life, the recurrent moves and the racism you experienced from your peers contributed to significant and persisting experiences of anxiety. In particular, the family violence you experienced at the hands of your father is said to have triggered a significant traumatic response.
Mr Newton noted that you did not receive any treatment as a young person for your anxiety. Rather, you told him that, as the eldest child, you were expected to be strong and internalise your anxiety.
Mr Newton is therefore of the view that you were suffering from a generalised anxiety disorder at the time of the offence:
In combination the various stressors which Mr Deng is facing result in a level of anxiety that is well in excess of the level normally seen in individuals assessed in such situations. This reflects his youth, the repeated and extended nature of the stressors he has experienced, and the variety of situations in which they have occurred.
Diagnostically, Mr Deng’s symptoms are sufficiently severe to meet DSM-5 diagnostic criteria for a generalised anxiety disorder. There is some risk that his condition could deteriorate in the context of an extended period in custody. He would be likely to benefit from the provision of ongoing mental-health care to prevent this.
Mr Newton also discussed your substance abuse. He noted that your consumption of Xanax escalated quickly, to the point that you would consume the drug several times a week. You reported finding it difficult to stop using the drug, in part because you became dependent on it, but also because it had been strongly integrated into the activities of the groups with whom you socialised. Mr Newton reported that you told him you have now ceased misusing Xanax.
In relation to your alcohol use, Mr Newton stated that you reported a substantial increase in alcohol consumption in the four years prior to the offence. While you did not drink daily, when you did drink you would reportedly consume to the point of intoxication and blackouts. You also informed him that you had used cannabis and cocaine in social contexts from age 17, although you said you consumed these drugs irregularly.
Mr Newton therefore concluded that you were suffering from a substance use disorder at the time of the offence:
Diagnostically, Mr Deng’s drug use was sufficiently intense to meet DSM-5 criteria for a substance-use disorder with regard to alcohol and benzodiazepines. Based on his reported pattern of usage this condition would have been at the moderate to severe level of intensity at the time of his offending. Assuming his reported abstinence throughout his time on remand has been confirmed it would now be designated to be in remission, in a controlled environment.
Importantly, in his supplementary report, Mr Newton told the court that you had subsequently informed him that you had consumed alcohol with your friends on the night of the offence. You estimated that you would have consumed the equivalent of “at least a six pack” of beer, and that you were feeling intoxicated, but not severely so. You told Mr Newton that you thought your alcohol consumption on the night of the offence was “partly” to blame for your conduct.
With respect to the effect of these disorders at the time of your offending, Mr Newton opined in his initial report that:
Mr Deng’s anxiety disorder is apt to result in some increase to his reactivity at times of stress – particularly at times where violence or aggression is manifest. Under such conditions, he is likely to experience ‘rekindling’ of distressing feelings, thoughts and memories from his prior exposure to family violence. In turn, these would be expected to affect his capacity to reflect upon his actions calmly and to exercise his usual decision making skills.
Mr Newton expanded upon this in his supplementary report, noting that:
The effects of his anxiety as described by Mr Deng are consistent with the effects which I would have anticipated his anxiety to have had upon him. In particular, he described increased reactivity, difficulty thinking clearly about his situation and a rapid escalation in his level of physical arousal. All of these effects are consistent with elevated anxiety. The [sic] render the processes of reflect, decision making communication and conflict management more challenging and difficult.
In relation to your substance use disorder, Mr Newton concluded in his supplementary report that:
Mr Deng has clarified that he was intoxicated at the time of the offending. Such alcohol intoxication would have added to the disinhibition of aggression, increased the clouding of his thought process and made it more difficult for him to exercise effective control of his behaviour. Such effects were, of course, not only self-inflicted by Mr Deng but also ones with which he was familiar through his past experiences of heavy alcohol consumption.
Submissions for Deng
On your behalf, numerous reports and references were provided to the court, along with a written outline of submissions.
Circumstances of the offence
It was submitted on your behalf that you approached Mr Apai in response to requests from females in your social group. These females allegedly claimed Mr Apai was harassing them, and asked you for your support. It was submitted that you asked Mr Apai to leave the females alone, but Mr Apai did not listen.
It was further submitted that, after you punched Mr Apai, he picked up a glass beer bottle in his right hand and shaped up to you. Blurry mobile phone footage and photographic evidence of two glass bottles at the scene after the fact were provided to substantiate this submission. Your counsel contended that your offending therefore occurred in the context of a heated argument in which Mr Apai threatened you with an object, although it was acknowledged that your actions were not justified as a form of self-defence or in any other way.
In relation to your possession of the knife you used to kill Mr Apai, the defence submitted that you had placed it in your bag as a form of protection in case of trouble, as you had witnessed violent incidents at public venues in the past. It was argued that you did not intend to use the knife. However, it was also properly conceded that the use of the knife aggravates your offending. Nevertheless, the defence submits that your offending was not premeditated, occurred relatively spontaneously and there was no attempt to cover up the death.
It is conceded that, after stabbing Mr Apai, you fled the scene. However, your counsel submitted that, at the time you left, Mr Apai was still standing and there was no indication he was critically injured. It was also contended that Mr Apai was physically bigger and taller than you, and therefore did not fall into a category of particular vulnerability.
Your counsel also conceded that, at the time of your offending conduct on 27 October 2021, you were subject to bail conditions that required you to live at your mother’s home in Traralgon between the hours of 9:00pm and 6:00am. It was acknowledged that when you offended, you were in breach of your bail conditions, and that this represents an aggravating factor.
Your counsel also conceded that you had smoked cannabis and consumed Xanax in the days leading up to the offence, and drunk alcohol in the hours before you stabbed Mr Apai.
Custody status and pre-detention
It was noted on your behalf that you have been on remand custody since your arrest on 5 November 2021, a total of 482 days at the time of the submission and 543 days as of today. Your counsel drew attention to the Covid-19-related restrictions you have experienced in prison,[12] and to your steps to engage with your family, your faith community and work opportunities within prison.
[12]Reference was made to DPP v Morey [2020] VCC 320 and R v Madex [2020] VSC 145, which held that Covid-19 restrictions and the risk of contracting Covid-19 may make prison more burdensome.
Personal circumstances
The defence relied on Mr Newton’s report as evidence of your difficult upbringing, good academic performance, history of pro-social connections and struggle with substance use.
Mitigating factors
It is submitted by your counsel that the following matters mitigate the seriousness of your offending.
First, your guilty plea. You offered to plead guilty before the committal hearing, and the matter resolved at an early stage. It is contended that your guilty plea facilitated the course of justice, saved considerable resources and has considerable utilitarian value that is of greater significance in the context of the continuing Covid‑19 pandemic.
Second, your counsel highlighted a “body of evidence” that indicates you are genuinely remorseful for your actions. This includes your plea of guilty, a letter of apology addressed to the court, the observations of Mr Newton that you appeared to feel “clear regret and remorse” for your crime and your expressions of remorse to others.
Third, the defence referred to Mr Newton’s dual diagnoses of generalised anxiety disorder and substance use disorder. Your counsel submitted that, given your gross overreaction to the altercation, there is a realistic connection between your impaired mental function and the offending, such that your moral culpability is slightly reduced. The principles expounded in R v Verdins[13] were also relied upon to submit that the principles of just punishment, general deterrence and specific deterrence should be slightly moderated (limbs 1, 3 and 4). Further, it was submitted that your anxiety disorder adds to the burden of imprisonment by rendering you more susceptible to the stress and other rigours of the custodial environment (limb 5).
[13]R v Verdins (2007) 16 VR 269 (‘Verdins’).
Fourth, the defence submitted that, as you are in your twenties, rehabilitation is a particularly important goal of sentencing. Although you currently pose a medium risk of reoffending, your counsel submitted that this risk can be expected to reduce if you engage with treatment and other interventions. The court was referred to Mr Newton’s assessment that your rehabilitation prognosis is positive.
Fifth, while it was conceded that your incarceration will not amount to exceptional hardship, it was submitted that a custodial sentence would impact upon your ability to support your mother and siblings financially and non-financially. This realisation was said to have already impacted you heavily.[14]
[14]The defence relied on Markovic v The Queen (2010) 30 VR 589 and Borg v The Queen [2020] VSCA 191 as authority for the proposition that the court can properly consider such matters during sentencing.
Finally, in relation to your character, it was argued that you have a limited and minor criminal history, and that the offending is therefore out of character.
Sentencing purposes
It was conceded that the sentencing purposes of denunciation, just punishment and general deterrence are called for and must have some significance in the formulation of an appropriate sentence. However, as discussed above,[15] an argument was put forward by your counsel that the emphasis which might otherwise be placed upon general deterrence and just punishment should be slightly moderated on the basis of your supposed reduced moral culpability.
[15]See paragraph 107 above.
A similar argument was advanced in relation to the sentencing purpose of specific deterrence. The defence submitted it was appropriate to moderate specific deterrence in light of your plea of guilty, genuine remorse, your lack of previous violent offending, the situational nature of the offence and your prospects for rehabilitation. Protection of the community was also said to be of lesser importance, given your positive prospects of rehabilitation and the availability of supervised release conditions.
Finally, it was submitted that rehabilitation could be achieved by sentencing you to a custodial sentence with a lengthy period on parole, which could occur under supervision and with appropriate treatment conditions.
Sentencing practices
Your counsel acknowledged that a custodial sentence is inevitable, given manslaughter is a Category 2 offence for the purposes of section 5(2H) of the Sentencing Act 1991 (Vic) [‘the Act’]. In relation to the length of the custodial sentence to be imposed, the defence raised various cases that were said to provide a “useful comparison”. I have considered these cases below.[16]
[16]See paragraphs 161-166 below.
Submissions for the prosecution
The prosecution provided written submissions that were responsive to the defence’s submissions.
Circumstances of the offence
The prosecution submits that the offence does not fall in the category of the least serious examples of manslaughter, given you used a weapon in the course of an altercation with Mr Apai. The prosecution also contends that Mr Apai posed no threat to you in circumstances where you were in a group, but he was alone; Mr Apai was leaving the area where you and your group were located at the time of the altercation; and you were the physical aggressor.
Further, it was submitted that the altercation that led to Mr Apai’s death escalated as a direct result of your conduct. Given you and Mr Apai were not known to each other, the prosecution submitted you could easily have removed yourself from the situation, or waited for Mr Apai to leave.
The prosecution also highlighted the fact that the offending involved a victim unknown to you, took place in a crowded public location, and involved alcohol consumption. It drew the court’s attention to authorities that have described such violence as a “scourge on our society”.[17]
[17]See DPP v Russell (2014) 44 VR 471, 473 [1] (Maxwell P, Weinberg and Santamaria JJA); DPP v Dix [2015] VSCA 118, [18]-[19] (Maxwell P, Weinberg and Beach JJA).
Furthermore, it was submitted that the fact that you were on bail at the time of the offence, and in breach of the curfew conditions of your bail, aggravates the seriousness of your conduct. Counsel for the prosecution posited that, had you complied with the terms of your grant of bail and stayed, you would never have crossed paths with Mr Apai on this occasion.
Insofar as the defence alleged that Mr Apai picked up a glass bottle in his hands, the prosecution conceded that Mr Apai picked up an object. However, it submitted that at the time this occurred, you had already swung twice at Mr Apai. Further, the prosecution contended the contemporaneous video footage was too far away and too unclear to make out the nature of the object picked up by Mr Apai.
Finally, the prosecution noted that it is apparent from the footage that you lunged forward in order to stab Mr Apai. Although you inflicted only one stab wound, the prosecution submits that your behaviour can be characterised as aggressive both in the lead-up to and during the offence.
Custody status and pre-detention
It was conceded that conditions of confinement have been more onerous during your period on remand as a direct result of the pandemic. The prosecution acknowledged that custodial conditions may continue to be restrictive into the future.
Personal circumstances
The prosecution further conceded that there is significant utilitarian value in your plea of guilty, especially given it occurred during the Covid-19 pandemic, and furthermore, that your plea of guilty has spared Mr Apai’s family and supporters the ordeal of a trial.
In relation to your self-inflicted intoxication, the prosecution submitted it cannot be considered a mitigating circumstance. It was noted that you were familiar with those effects due to your past experiences of heavy alcohol consumption.
As to the defence’s submission that your incarceration will deprive your family of your financial and non-financial assistance, the prosecution contended that any such assistance was not guaranteed in the first place. It was noted that prior to the offence, you were not staying full-time with your family in Traralgon and nor did you appear to be employed. Nevertheless, it was conceded that an offender’s anguish at being unable to care for a family member may be taken into account if the sentencing judge is satisfied it will make the offender’s experience of imprisonment more burdensome.[18]
[18]The prosecution referred to Markovic v The Queen (2010) 30 VR 589 as authority for this proposition.
In relation to your mental health, the prosecution disputed the role your dual diagnoses played in your offending. It was submitted that under cross‑examination by the prosecution prosecutor, Mr Newton acknowledged it was impossible to disentangle the effects of your generalised anxiety disorder from the effects of your voluntary intoxication on the night.
The prosecution also disputed that limbs 1, 3 and 4 of Verdins were enlivened. It did so on the basis that the relevant nexus does not exist. Nevertheless, the prosecution conceded that the psychological material supported a slight moderation of the sentence on the ground that your generalised anxiety disorder would render you more susceptible to the stress and other rigors of the custodial environment (limb 5).
In terms of your remorse, the prosecution did not dispute that you are now remorseful for your actions. However, it was submitted that this remorse was not present immediately after the offending or in the days afterwards. In support of this submission, the prosecution relied on the fact that you did not assist the victim nor hand yourself into the police once you became aware Mr Apai had died. Further, it highlighted that when you were arrested, you were found with the other individuals who were also present with you at the time of the offence.
Sentencing purposes
The prosecution submitted that the court should place particular emphasis on general deterrence given the fact that the offence involved alcohol use and occurred in a public place against a stranger. It took issue with the defence’s submission that general deterrence should be given lesser weight on account of your generalised anxiety disorder. Counsel for the prosecution submitted that the nature of generalised anxiety disorder and its impact on you were not sufficient to reduce your moral culpability.
Specific deterrence and community protection were also put forward as important. The prosecution drew attention to your prior criminal history, and noted that your prior offences have involved violence and the possession of a knife in a public place. It also highlighted that you have been assessed as a medium risk of violent reoffending. The prosecution also contended that denunciation and punishment were of importance given the seriousness of the offence currently before the court.
Counsel for the prosecution conceded that rehabilitation was a relevant sentencing factor, given your age. However, the court was urged to approach this factor with some caution on the basis that rehabilitation is to be given less weight as the seriousness of the instant offence increases. Nevertheless, the prosecution did not cavil with the defence’s submission that a lengthy parole period would foster your rehabilitation.
Sentencing practices
The prosecution noted that current sentencing practices are one, but not the controlling, factor to be taken into account in sentencing. It conceded that the cases provided by the defence were of some assistance, and referred the court to a sentencing snapshot and two additional decisions by the Court of Appeal. They are also discussed below.[19]
[19]See paragraphs 161-166 below.
Analysis and discussion
Sentencing factors
Maximum penalty
The maximum penalty for manslaughter is 25 years’ imprisonment.
Manslaughter is a Category 2 offence. A term of imprisonment must be imposed unless one of the exceptions in section 5(2H) of the Act can be established.
Standard sentence
Manslaughter is not a standard sentence offence. Sections 9A, 9B and 9C of the Act (imposing a mandatory minimum non-parole period) do not apply in this case.
The seriousness of the offending
It is well understood that the circumstances of the offence of manslaughter can vary widely, and accordingly it can be difficult to identify current sentencing practices for such offending.
I accept the submission of your counsel that your offending was not premeditated and occurred relatively quickly in the context of a heated argument with Mr Apai. However, having heard the submissions and considered the evidence, I have formed the view that your argument with Mr Apai would not have occurred but for your presence and actions.
Significantly, you were on bail at the time of the offending. Your presence in St Kilda on the night of 27 October 2021 breached your bail conditions. It was a direct violation of the curfew you were required to observe. Had you been at home between the hours of 9:00pm and 6:00am as your bail conditions required, you would not have encountered Mr Apai and the tragic events that have transpired would not have occurred. You simply should not have been in that place at that time. The fact that you committed your offending while on bail aggravates the seriousness of your offending.
Next, you were the primary physical aggressor in the confrontation between yourself and Mr Apai. It is common ground between both parties that you ran over to Mr Apai. You ran quickly into the scene and vaulted a fence in order to get ahead of him. He was leaving the area. You then turned and faced him, and confronted him. Once he reached you, you began walking with him. You then initiated the episode of physical violence that would ultimately follow on to Mr Apai’s death. You punched him towards his upper body at a time when he did not pose any physical threat to you. Your actions at that point, and until the conclusion, were unprovoked and aggressive. Further, as I have already found,[20] you followed up this punch by throwing a second at Mr Apai’s upper body.
[20]See paragraphs 52-55 above.
As to the defence’s allegations that Mr Apai was harassing the females in your social group, there is insufficient evidence for me to find that this occurred on the balance of probabilities. Having said that, something clearly occurred that caused you to attack him. I am unable to say what that was, but even if something occurred between him and some women, it would not justify your actions nor minimise your role as the primary physical aggressor.
It is apparent that a number of young men, including you and Mr Apai, moved out of the area, and things appeared to have cooled down for a few moments. However, you returned to the area near the toilets, spoke with some people, following which it is apparent you and some others headed back along the path towards the street. In this context, you took out the knife you had in your possession and so armed yourself with it in an offensive manner. This was completely unnecessary. Mr Apai was no threat to you, as he was backing away, and it may be said, he was mostly on the defensive.
I accept that you did not originally carry the knife with the intention of using it. Rather, you have said you were carrying it for defensive purposes. Whilst that may be so, you should not have had it in your possession, and you should not have taken it out. Having taken out the knife, within a handful of seconds, you quickly lunged at Mr Apai near the edge of Jacka Boulevard and as can be seen, in a split second, you stabbed him. Importantly, and as conceded by your counsel, the fact that you used the knife as part of your attack on Mr Apai clearly aggravates your offending. I accept that you only stabbed Mr Apai once, but this does not detract from the fatal consequences of the wound that you inflicted.
Further, I am unable to conclude on the balance of probabilities that Mr Apai picked up a glass beer bottle in his right hand and shaped up to you. The evidence before me consists of mobile phone footage that is blurry and shaky. While it appears from the footage that Mr Apai was holding something that reflected in his hand prior to being stabbed, it is not clear what the object is. The fact that two beer bottles were later found at the scene is, of course, evidence that they were there, but it does not enable me to be satisfied that he had a beer bottle in his hand.
Regardless, I find this factual issue to be of little weight in sentencing. The presence or absence of a beer bottle in Mr Apai’s hand does not, in my mind, change the overall nature of the offence. To my mind, Mr Apai was never the attacker in these events; indeed, your counsel has conceded that your actions cannot be justified as a form of self-defence. You chose to use the knife at a time when Mr Apai was backing away from you and posed no threat to your safety. Indeed, it is clear to me that you pursued him from the beginning to the point where you stabbed him. In overall terms, you were the aggressor in the events, and you intended to carry out violence, which you did. At the moment Mr Apai was confronted by you, there were also two other people nearby. He was alone, and in my opinion, he was vulnerable, as you had a knife, which you used.
Also of concern is the fact that you attacked a person who was not known to you, while intoxicated and in a public place. It is well understood that that a public place is a popular area in which the public are entitled to resort to safely and with enjoyment. You destroyed all that. The prosecution has correctly noted that the Court of Appeal has described such attacks as a “scourge on society” that must be vigorously denounced. General deterrence and denunciation must play a significant role in the sentence to be imposed.
Further, although your counsel submitted you did not attempt to cover up Mr Apai’s death or dispose of his body, this has no real mitigating effect in circumstances where Mr Apai died in hospital the following day. Your counsel also submitted that you did not attempt to prevent Mr Apai from seeking medical help. While I accept this, it is overshadowed by the fact that you did not try to determine the seriousness of Mr Apai’s injury. Instead, you sought to avoid the consequences of your actions by immediately fleeing the scene and failing to hand yourself in, even after you were notified of Mr Apai’s death.
Further, with some of your associates, you waited by a car for some time before eventually leaving, which gave you enough time to reflect and return to the scene to find out how your victim was, to assist him and to turn yourself in. Instead, you ran away and never gave yourself up, doubtless hoping that it would all just go away.
In all the circumstances, I find that your actions were aggressive, reckless and unjustified. They were committed in anger against a victim who found himself alone and confronted by you attacking him with a knife. You had plenty of time to back off, but you instead pursued him and attacked him. Your offending is serious, falling in the medium to upper range of seriousness.
Moral culpability
Your counsel outlined various factors that were said to reduce your moral culpability, namely the dual diagnoses of generalised anxiety disorder and substance use disorder, your difficult upbringing, your displays of remorse, the character references lodged on your behalf and your letter of apology to the court.
As to Mr Newton’s assessment of your mental health, I accept his opinion that under stressful conditions, particularly those where violence or aggression is manifest, you are likely to experience a “rekindling” of distressing feelings due to your prior exposure to family violence. These feelings can, in turn, cause you to become increasingly reactive, have difficulty thinking and experience challenges in managing conflict. However, this mitigating factor must be counterbalanced against the following considerations:
(a) you placed yourself in the stressful situation with Mr Apai by virtue of your own actions; namely, you ran over to where he was and then proceeded to physically assault him. Had you refrained from doing so, it is likely you would not have ended up in an aggressive environment (and thus avoided any “rekindling” of distressing feelings); and
(b) you were voluntarily intoxicated at the time and, as acknowledged by Mr Newton, your actions were consistent with the documented effects of alcohol abuse. It is therefore difficult to disentangle the effects of your intoxication from the effects of your generalised anxiety disorder. While I accept that your alcohol consumption was likely due to your substance use disorder, the mitigating effect of this factor is of lesser weight. The authorities are clear that if an offender knows they have a propensity for violence while intoxicated and yet proceeds to drink to excess, their moral culpability increases.[21] During cross-examination, Mr Newton gave evidence that you were well-aware that drinking to excess increased your propensity for aggression. He stated that you had given him examples of this occurring. In these circumstances, the fact that you consumed a considerable quantity of alcohol on the evening of the offending increases your moral responsibility and makes it more difficult to attribute your offending to your generalised anxiety disorder.
[21]Dosen v The Queen [2012] VSCA 307, [18]-[21] (Maxwell P and Redlich JA); Edwards v The Queen [2011] VSCA 87, [23] (Weinberg JA, with whom Maxwell P and Harper JA agreed); R v Rees [2011] VSC 523, [34] (Hollingworth J); R v Martin (2007) 20 VR 14, 29 [53] (Maxwell P, Nettle and Redlich JA).
Regarding your upbringing, I accept that you have had a difficult and challenging life so far. Your early years were framed by violence and significant instability due to the civil conflict in South Sudan. You have also experienced a difficult family life, suffering beatings at the hands of your father and witnessing the abuse of your mother. The departure of your father deprived you and your family of his support, which in turn required you to take on parental responsibilities at a young age. I also accept that you experienced bullying and racism in the schooling environment. These observations do not excuse your behaviour, but I accept your moral culpability is less than had you not experienced such disadvantages.
Further, despite these disadvantages, you have shown considerable aptitude in your studies, achieving good results. After finishing school, you proceeded to work in a number of roles. Although I note that your longest period of employment was five months, you have demonstrated a continued desire to work. This is illustrated by your current employment as a billet.
I also accept that you have a history of pro-social connections, developed through your involvement in your local church and basketball. Your character references speak to your sense of responsibility, service to your family and community, and mentoring of younger children. It is clear that you have played a valuable role in your community and that you are surrounded by supportive family and friends.
In particular, your former partner, Cidiana Tesfaye, provided the court with a character reference that went into some detail about her understanding of your mental state. She informed the court that she believes you were suffering from poor mental health around the time of the offending. However, she is of the opinion that you have matured and grown in your ability to understand the gravity of your actions.
Some degree of comfort can be taken from these references and your educational history, but at the same time, they make it more puzzling why you resorted to the particular gratuitous form of violence you displayed in stabbing Mr Apai. Although you have some prior convictions, it appears the offending was out of character for you. You show potential for rehabilitation and belong to a community that appears willing to support you.
I now turn to your remorse. I accept your counsel’s submission that there is a body of evidence that indicates you are genuinely remorseful. You pleaded guilty at a relatively early stage and provided an undated letter of apology to the court, stating that there were “no excuses for [your] actions” and that you were “truly sorry for the extensive damage” you had caused.
I have also taken into account that you have sought to put an end to rumours that you are not responsible for Mr Apai’s death, in order to spare his family further anguish. Further, I note that Mr Newton is of the opinion that your remorse is genuine.
However, I accept the prosecution’s submission that your remorse was not immediately apparent. Rather, it appears to have developed during your time in custody. The fact that you did not assist Mr Apai, nor hand yourself into police after you were told he had died, suggests an initial lack of remorse. It took nine days for police to locate you and, when they did, they found you in the company of individuals who were present with you during the offence. Therefore, while I view your present remorse as genuine and a substantial mitigating factor, its weight is somewhat moderated given your actions in the days after the offence.
Guilty plea
I take into account your offer to plead guilty to the charge of manslaughter, which was ultimately accepted at an early stage. In making this offer and entering your plea, you saved the court and the parties considerable time and resources, and spared Mr Apai’s family from a lengthy trial. Given the evidence available and in the circumstances discussed above in overall terms, I accept you have positive prospects of rehabilitation.
I also accept and take into account the principle of parsimony, as well as to some extent an application of the principle set out in the case of Worboyes v The Queen,[22] which allows for a plea of guilty entered during the currency of the pandemic to be worthy of greater weight in mitigation than a similar plea entered at a time when the pandemic was not impacting the community and the courts.
[22]Worboyes v The Queen [2021] VSCA 169.
Current sentencing practices
As noted above,[23] it is difficult to identify sentencing practices with respect to manslaughter. Nevertheless, I have had regard to the cases highlighted by the defence[24] and the prosecution,[25] along with the sentencing snapshot referred to in the prosecution submissions.
[23]See paragraph 136 above.
[24]The defence drew the court’s attention to: R v Gurlu [2022] VSC 820; DPP v Devey (No 2) [2021] VSC 121; DPP v Garrard [2020] VSC 154; DPP v Beattie [2020] VSC 229; DPP v Awad [2019] VSC 706; DPP v Frost [2019] VSC 672.
[25]The prosecution acknowledged that the authorities identified by the defence were of some assistance to the court and drew the court’s attention to two additional cases: Edwards v The Queen [2020] VSCA 339; Devey v The Queen [2021] VSCA 361.
In my view, the decisions in DPP v Garrard[26] and DPP v Devey (No 2)[27] are of particular relevance.
[26]DPP v Garrard [2020] VSC 154.
[27]DPP v Devey (No 2) [2021] VSC 121, upheld on appeal in Devey v The Queen [2021] VSCA 361.
DPP v Garrard involved a single stab wound to the lower abdomen in circumstances where the offender had got into an argument with the deceased over the sale of marijuana. The argument occurred outside a milk bar, in the presence of a group of people. Both the offender and victim began yelling, and then threw punches at each other. The offender took a knife from his pocket, stabbed the victim once and then fled the scene. He was arrested the following day.
The offender was also only 20 years old at the time of the offending and had experienced an extremely disadvantaged upbringing. His parents separated when he was young, he was abused by a step-parent and he had become addicted to drugs at an early age. Limb 5 of Verdins was engaged, as there was evidence the offender had a personality disorder and ADHD. He was sentenced to seven years in prison, with a non-parole period of five years.
DPP v Devey (No 2) also concerned a single fatal stab wound. The offender had been drinking with the victim and others at a private residence, when the mood soured. A fight broke out between the offender and victim. The offender grabbed a knife, stabbed the victim once in the torso, and then immediately fled the scene.
In this case, the offender was 53 years old. He had an abusive father, who had assaulted him and his mother throughout his childhood. Despite this turbulent upbringing, he had obtained stable work as a chef and restaurant manager. However, after a relationship breakdown, the offender ceased working and began using drugs and alcohol. He incurred a significant number of criminal convictions and was later diagnosed with a moderate personality disorder. In all the circumstances, he was sentenced to an imprisonment term of seven years and six months, with a non-parole period of five years and six months.
Sentencing purposes
General deterrence, denunciation and punishment
It was common ground between the parties that just punishment was an important consideration, and that a term of imprisonment was the only appropriate sentence in the circumstances. However, the defence submitted that the length of the prison sentence should be moderated on the basis of your generalised anxiety disorder and substance use disorder (limb 1 of Verdins).
I am unable to accept that the nature of your diagnoses rises to such a level. In order for Verdins to apply, there must be a causal relationship between the diagnosis and the offending behaviour. While Mr Newton observed in his reports that your mental state during the offending was consistent with the effects of anxiety, he later clarified under cross‑examination it was impossible to disentangle the effects of your generalised anxiety disorder from the effects of your voluntary intoxication on the night. Accordingly, I am not satisfied that a causal relationship between your diagnoses and your behaviour on the night has been proven to the requisite standard.
Regarding general deterrence, this principle takes priority in circumstances where public safety is put at risk,[28] such as cases involving street violence,[29] drugs or alcohol,[30] and unprovoked attacks.[31] General deterrence will also be of particular importance if the offending is committed in breach of a court order such as bail.[32] All of these factors are, to varying degrees, present in your case. I therefore consider general deterrence to be important in the circumstances. Again, I find the relevant nexus between your diagnoses and your offending to be too weak to justify applying limb 3 of Verdins.
[28]Bedson v The Queen [2013] VSCA 88, [70] (Redlich, Weinberg and Coghlan JJA); Vergados v The Queen [2011] VSCA 438, [70] (Warren CJ, with whom Nettle and Ashley JJA agreed); R v Kennedy [2006] VSCA 77, [11] (Buchanan JA, with whom Vincent and Neave JJA agreed).
[29]DPP (Vic) v Betrayhani (2019) 278 A Crim R 341, 351 [47]-[48] (Maxwell ACJ, Beach and Niall JJA); Raveche v The Queen [2015] VSCA 99, [67] (Redlich and Kyrou JJA); DPP v Russell (2014) 44 VR 471, 482 [62] (Maxwell P, Weinberg and Santamaria JJA); Tancredi v The Queen [2010] VSCA 157, [25]‑[26] (Osborn AJA, Ashley and Redlich JJA).
[30]Smith v The Queen (2013) 39 VR 336, 348 [54] (Priest JA, with whom Harper and Coghlan JJA agreed); Winch v The Queen (2010) 27 VR 658, 665-667 [37]-[41] (Maxwell P and Redlich JA); DPP (Vic) v Malikovski [2010] VSCA 130, [50] (Maxwell P); DPP (Vic) v Simpas [2009] VSCA 40, [13] (Nettle JA); DPP v Lawrence (2004) 10 VR 125, 132 [22] (Batt JA, with whom Winneke P and Nettle JA agreed).
[31]DPP (Vic) v Betrayhani (2019) 278 A Crim R 341, 351 [47] (Maxwell ACJ, Beach and Niall JJA); Delich v The Queen [2014] VSCA 66, [35] (Nettle and Neave JJA, Sifris AJA); Carter v The Queen [2012] VSCA 99, [18] (Redlich JA, with whom Buchanan JA agreed); R v Duncan [2009] VSCA 253, [11] (Buchanan JA, with whom Dodds-Streeton JA and Hansen AJA agreed).
[32]Buchwald v The Queen (2011) 38 VR 199, [191] (Hansen JA, with whom Redlich and Neave JJA agreed).
Further, it is important that the court denounce your actions. A young life was tragically cut short in a violent, alcohol-fuelled act that involved the use of a weapon in a crowded public place. Such behaviour is not tolerated by the community.
Specific deterrence, rehabilitation and protection of the community
In relation to specific deterrence, I have had regard to your prior criminal history. I accept the submission that these matters do not detract from the finding that your offending is out of character. I also accept that your plea of guilty, expressions of remorse and your positive progress in custody lessen the emphasis to be placed on specific deterrence. However, specific deterrence must still play a role, especially in light of the fact that you have been assessed as a medium risk of violent reoffending. For reasons similar to those outlined above,[33] there is insufficient evidence to warrant the application of limb 4 of Verdins.
[33]See paragraphs 168-169 above.
It is agreed between the parties that rehabilitation is an important consideration in light of your age. Although the emphasis to be placed on rehabilitation decreases as the seriousness of the offence increases, I nevertheless consider that it should be given substantial weight in this instance. Both the prosecution and the defence submitted that a custodial sentence with a lengthy parole period would help achieve your rehabilitation, and I agree with this approach.
Community protection is also of some, albeit lesser relevance, in light of your moderate risk of reoffending as assessed by Mr Newton.
The principle of parsimony in section 5(3) of the Act must also be applied, and the sentence must not be more severe than is necessary to achieve the purpose or purposes for which it is imposed. In this regard, I accept that limb 5 of Verdins is enlivened. The prosecution rightly conceded that the psychological material is supportive of a slight moderation of your sentence on the basis that your generalised anxiety disorder would render you more susceptible to the stress and other rigors of the custodial environment. I also accept that your anguish at being unable to care for your family will make your experience of imprisonment more burdensome.
Sentence
Duldong Deng Majiok, having taken all of these factors into account, I sentence you to be imprisoned for seven years and six months.
Taking into account the desirability of giving you a lengthy parole period, I order that you serve five years before being eligible for parole.
Section 6AAA declaration
I have imposed on you a less severe sentence than I otherwise would have because you have pleaded guilty to this offence. Pursuant to section 6AAA of the Act, I declare that but for your plea of guilty, I would have sentenced you to nine years and six months’ imprisonment with a non-parole period of seven years.
Pre-sentence detention
I further declare that that you have served 543 days of pre-sentence detention, not including this day.
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