R v Gebregiorgis; R v Kassa

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2022 0309
S ECR 2022 0310

THE KING	Crown
v
ARON GEBREGIORGIS	First Accused
TEAMRAT KASSA	Second Accused

---

JUDGE:	CHAMPION J
WHERE HELD:	Melbourne
DATE OF HEARING:	5 September 2024
DATE OF SENTENCE:	7 March 2025
CASE MAY BE CITED AS:	R v Gebregiorgis; R v Kassa
MEDIUM NEUTRAL CITATION:	[2025] VSC 86

---

CRIMINAL LAW — Sentence — Murder — Brother with co‑accused — Multiple stab wounds — Unprovoked attack — Group attack — Knife crime — Public place — Case stated — Guilty plea — Limited remorse — Good rehabilitation prospects — General deterrence important — Specific deterrence less important — Just punishment important — Crimes Act 1958 (Vic) — Sentencing Act 1991 (Vic).

CRIMINAL LAW — Sentence — Murder and recklessly causing injury — Brother with co‑accused — Multiple stab wounds — Unprovoked attack — Group attack — Knife crime — Public place — Case stated — Guilty plea — Limited remorse — Good rehabilitation prospects — General deterrence important — Specific deterrence less important — Just punishment important — Crimes Act 1958 (Vic) — Sentencing Act 1991 (Vic).

---

APPEARANCES:	Counsel	Solicitors
For the Prosecution	N Hutton SC G Buchhorn	Office of Public Prosecutions
For the First Accused	S Norton	Stary Norton Halphen
For the Second Accused	A Halphen A Beech	Robinson Gill

HIS HONOUR:

Introduction

Teamrat Kassa, on 14 June 2024 you pleaded guilty to the murder of Alier Riak and to recklessly causing injury to Kuol Riak on 13 March 2022.

Aron Gebregiorgis, on 25 July 2024 you pleaded guilty to the murder of Alier Riak on 13 March 2022.

The maximum penalty for the offence of murder is life imprisonment. Murder is a standard sentence offence carrying a prescribed standard sentence of 25 years’ imprisonment. The maximum penalty for the offence of recklessly causing injury was, and remains, five years’ imprisonment.

The victim’s background

You killed Alier Riak when he was 23 years old and celebrating his 23^rd birthday.

Before his death, Mr Riak was working in Perth as a landscape gardener and playing professional basketball. He had recently signed a contract to play basketball in Darwin, and previously studied and played college basketball in the United States.

Circumstances of the offending
Events prior to the offending

In February 2022, Alier Riak came to Melbourne from Perth to celebrate his 23^rd birthday with family and friends. He was due to start his basketball contract in Darwin the week following his death.

Mr Riak, his brothers Kuol and Ajak, and several friends planned to attend ‘Watermelon Sundae’, an event at the Watermark Hotel in Docklands on Saturday 12 March 2022. Mr Riak had purchased a number of tickets to the event.

The two of you also attended the ‘Watermelon Sundae’ event with friends.

At about 11:45pm on 12 March 2022, Mr Riak and his group arrived at the Watermark Hotel, listened to music, had a few drinks, and danced.

At about 2:45am on the following morning, Sunday 13 March 2022, the Watermark Hotel turned on its lights and began encouraging people to exit the venue. Mr Riak and his group moved outside to arrange transport from the Hotel.

Mr Riak’s friends started to give him ‘birthday punches’ while they were standing outside the venue. This attracted the attention of another group of males, unknown to Mr Riak and his friends, who joined in on the punching, although not in a friendly way.

One of the unknown males punched Mr Riak in the face, at which time his brothers intervened causing the other group to move away.

During the intervention, one of the males asked Mr Riak’s brother, Kuol, where he was from. Kuol noted that he was from Perth. The male then became agitated. A member of Mr Riak’s group stated that they were not from Melbourne and to ‘leave it alone’.

Following this interaction, a scuffle ensued. It is not alleged that either of you were involved, although CCTV footage is unclear about precisely what happened and who participated.

Mr Riak’s group then left the area and walked towards Bourke Street where they had parked their cars. Mr Riak, his girlfriend, AN, and another friend entered their car while the rest of their group stood nearby.

You and your group of approximately six or more young men then approached those in Mr Riak’s group who were standing outside the car. Mr Riak remained in the car. You and your group were positioned between the driver’s side of Mr Riak’s car and the car parked next to it.

The offending

The facts with respect to the offending are largely agreed, and the majority of what occurred was captured on CCTV and mobile telephone footage, much of which was played to the Court during the plea hearing.

You both approached Kuol Riak, and you, Mr Kassa, pulled a knife out of your bag and flipped it open. The knife had a silver blade. Kuol Riak immediately backed away, however, tripped over a kerb. Kuol remembers being kicked and punched by members of your group while on the ground and recalls you, Mr Kassa, punching him in the back. Kuol Riak thought you were the one who stabbed him.

You, Mr Gebregiorgis, together with another from your group, then approached Kuol Riak while he was on the ground in the space between the cars. Kuol made attempts to get away but, you, Mr Kassa, joined in the confrontation at that time and began to attack Kuol and one of his friends, making slashing and stabbing motions towards them with the knife.

Kuol Riak and his friend were able to get up a short time later and ran along Bourke Street in fear for their lives. They managed to run for only a short distance before Kuol stumbled and fell to the ground again.

Members of your group caught up to Kuol and continued the attack. Kuol attempted to run away a further time, but your attacks did not abate and he eventually fell to the ground once more.

Meanwhile, Alier Riak got out of his car during the attack on his brother. You, Aron Gebregiorgis, pursued him, attacking him from behind. You, Kassa, then joined in on your brother’s attack on Alier, who by that time had run towards a nearby park.

At different times during the attack, Kuol Riak saw you both stab his brother.

Kuol Riak was pushed out or somehow ejected from the centre of the altercation while you both continued the attack on Alier Riak just inside the park. You were both thrusting knives towards Mr Riak’s chest. Alier Riak retreated further into the park to escape, but fell to the ground. You both followed him, and your attack continued. Gebregiorgis, whilst Mr Riak was on the ground, you were seen to be making multiple downwards stabbing motions towards him. Despite your attack, Mr Riak was able to get up, and stagger away across the road. He had visible blood stains on his chest area and was covered in blood. Mr Riak then collapsed, and someone attempted to give him first aid.

Meanwhile, you both continued the attack on Kuol Riak. His shirt was torn from him, and he fell to the roadway where he was further attacked. The police arrived shortly thereafter.

The prosecution allege that you, Kassa, are responsible for the four stab wounds inflicted on Kuol Riak on a complicity basis. These wounds occurred between when Kuol was first confronted by your group and when he fell to the roadway beside the park. It is not clear who of you or your friends were responsible for inflicting one or more of the stab wounds.

Post‑offence movements
Alier Riak

An ambulance attended and treated Mr Riak at the scene before transporting him to the Royal Melbourne Hospital. Mr Riak died during the ambulance journey.

Mr Riak was not known to either of you when you murdered him.

Kuol Riak

Kuol Riak was treated by ambulance officers at the scene before being transported to the Alfred Hospital. He had been stabbed four times in the back and arms and received one laceration to the back of one arm.

After being initially released with minor pain medication, by 7:30pm on Sunday 13 March 2022, Kuol Riak was in intense pain and was driven to the emergency department of Footscray Hospital for further treatment.

Gebregiorgis

After the police arrived, Gebregiorgis, you walked calmly away from the park. You removed the white long shirt you were wearing to reveal a grey t‑shirt beneath. You had blood on your shoes, and you appeared calm. You walked towards the water on Enterprize Way at Docklands. You then walked back towards Bourke Street, showed some associates your arms and hands on which you had some significant wounds and swapped an item of clothing.

You got into an Uber which had been ordered by a friend; however, the Uber was cancelled. Your girlfriend collected you from the city at 4:06am and drove you to Werribee Hospital. You arrived at the hospital at 5:56am, giving your name as Aron Kassa. The triage nurse noted that you had lacerations to your left arm and right index finger, and possibly your right thumb. You were treated at the triage counter and left with your girlfriend.

Kassa

Kassa, you stood by the road with friends near to where the violence occurred and watched the police take control of the area, and where Alier Riak was receiving first aid. You and your group then walked away from the scene and got into an Uber which took you to an address in Richmond. You changed your clothes while in the Uber. At 8:15am on Sunday 13 March 2022, police attended the Richmond address for an unrelated matter.

At 8:30pm on Sunday 13 March 2022, you entered Footscray Hospital and were triaged by a nurse who had shortly beforehand spoken with Kuol Riak. You told the nurse you suffered cuts from glass, however, the nurse noticed deep lacerations requiring stitching which did not seem to have come from glass. You left the hospital prior to treatment as you were recognised by Kuol Riak who identified you as the man who had stabbed him earlier that day.

The police investigation
Autopsy

The autopsy on Alier Riak’s body revealed:

(a) two stab wounds to the chest (one through the pericardium and one into the pleural cavity);

(b) two stab wounds to the right lower abdomen region;

(c) one stab wound to the left lower abdomen region;

(d) one stab wound to the left inner thigh that injured the femoral artery;

(e) two stab wounds to the right buttock;

(f) one incised wound to the posterior right arm; and

(g) minor abrasions and signs of medical intervention.

It was concluded that Mr Riak died from stab wounds to the chest and leg.

Further investigation and arrest

Seizure of items from the scene, in conjunction with forensic analysis revealed biological material from you both on a grey sheath knife and biological material from you, Kassa, on a black knife. Biological material from the victims of the stabbing was identified on both knives. Biological material from the deceased, Alier Riak, was also identified on a gold flick knife, which was located at the Richmond address where you, Kassa, and some members of your group attended after the stabbing.

On 18 March 2022, police executed search warrants at your respective homes and police seized items from both premises. Kassa, you were arrested at your home, whilst, Gebregiorgis, you later surrendered yourself into custody at the Melbourne West police station.

You were both remanded into custody.

Procedural history

Gebregiorgis, you were charged with murder and Kassa, you were charged with murder and recklessly causing injury.

In November 2022, you were both committed for trial. The prosecution case for murder was put on three alternative bases, two of which contended that one of you was primarily liable while the other was complicit. Together, you sought a pre‑trial ruling from the trial judge on the following question: ‘what are the elements of statutory complicity under s 323(l)(a) and (c) [of the Crimes Act 1958] that must be proved by the prosecution in respect of murder?’ The prosecution and defence made conflicting submissions and there was some uncertainty as to which was to be preferred.

As a result, in May 2023, the trial judge reserved two questions of law for determination by the Court of Appeal. The two questions were:

1For the prosecution to establish that a secondary party is guilty of murder on the basis that he/she was involved in the commission of the offence of murder pursuant to s 323(1)(a) of [the Act], by reason of having intentionally encouraged the primary offender to commit the offence of murder, is it necessary for the prosecution to prove that the secondary party intentionally encouraged the primary offender to kill the deceased?
2For the prosecution to establish that a secondary party is guilty of murder on the basis that he/she was involved in the commission of the offence of murder pursuant to s 323(1)(c) of [the Act], by reason of having agreed with the primary offender to commit the offence of murder, is it necessary for the prosecution to prove that the secondary party entered into an agreement with the primary offender that they (whether through the actions of one or other, or both of them) would kill the deceased?

On 6 July 2023, the Court of Appeal conducted its hearing and on 14 July 2023 delivered its ruling, answering ‘No’ to both questions.

On 7 March 2024, a special leave application to the High Court was refused in light of the Court’s decision in R v Rohan.[1]
[1][2024] HCA 3.

On 14 June 2024, Gebregiorgis, you were arraigned and pleaded guilty to murder.

On 25 July 2024, Kassa, you were arraigned and pleaded guilty to murder and recklessly causing injury.

Your plea hearings were heard by this Court on 5 September 2024.

Victim Impact Statements

The Court received 14 Victim Impact Statements from Mr Riak’s family, girlfriend and members of the South Sudanese community of which he was a part.

Elizabeth Ayen Malek and James Riak

Mr Riak’s parents, Elizabeth Ayen Malek and James Riak, made individual statements to this Court about the devastating impact of the loss of their son.

Ms Malek describes the heartbreak and unbearable pain caused by the death of Alier. She recognises the pain felt by her other children and her husband which this loss has caused, as well as the deep trauma in their lives.

Ms Malek notes that Alier was a strong and dedicated student and talented athlete who had a kind, loving, respectful, and peaceful nature. Alier was a role model to his family and community.

James Riak similarly describes the damage he feels he and his family have suffered due to his son’s death. James Riak notes that his family will never be the same, and he struggles to comprehend why you both did what you did.

Mr James Riak highlights Alier’s achievements and his role as a good son and loving brother.

Mr James Riak provided the Court with several photos of Alier and his family.

Kuol, Ator, Ajak, Aluel, Thon, and Yom Riak

Alier Riak’s siblings, Kuol Riak, Ator Riak, Ajak Riak, Aluel Riak, Thon Riak and Yom Riak, each provided a statement about the loss of their brother.

Kuol Riak, Mr Riak’s eldest brother, told the Court that the death of his brother has left him emotionally traumatised. He states that it has been mentally tough to accept the passing of his brother, and that the loss left a big gap in the heart of his family and community. Kuol celebrated his brother’s basketball ambitions and hopes of making progress here in Australia.

Ator Riak, Mr Riak’s sister, spoke of being confused, upset and mad that her brother was taken from her. She spoke to Alier over the phone only a few hours before his death. She remembers her brother as a good role model and a very good and intelligent person.

Ajak Riak, Mr Riak’s brother, wrote of the despair he sees in his mother’s eyes and a sense of losing part of himself following Alier’s death. He describes falling into a deep depression, dropping out of university and pausing his soccer career. Ajak no longer enjoys birthdays or outings in Melbourne and is plagued by the fear of experiencing violence again.

Aluel Riak, Mr Riak’s younger sister, describes having to defer her university studies because she felt completely numb, traumatised and unable to process or focus after her brother’s death. Aluel describes the emotional and psychological pain and disruption to her family’s daily life, as relationships have been strained within the family as they have grappled with an overwhelming sense of injustice and grief.

Thon Riak, Mr Riak’s older brother, stresses the very profound negative effect that the loss has had on all members of his family.

Yom Riak, Mr Riak’s younger sister, speaks about the indescribable void and pain left in her life since her brother’s death. She remembers her brother as awesome, loving and caring, and wishes for one more moment with him to tell him how much he is missed and loved.

Abraham Akout (Jok Aguto)

Abraham Akuot (or Jok Aguto), Mr Riak’s uncle, told the Court that Alier’s murder has shattered his family. Alier was a source of inspiration, a role model, and the pride of the entire family which now struggles with overwhelming sadness following Alier’s death.

AN

AN, Mr Riak’s girlfriend, explains the profound effect that Alier’s death has had on her life. She suffers from severe insomnia, anxiety attacks and frequent nightmares, and her mental well‑being and emotional stability have been severely negatively affected. Mr Riak’s death has disrupted every aspect of her life.

The South Sudanese community of Western Australia

Various statements were also received from members of the South Sudanese community to which Mr Riak belonged.

John Aciek, the President of the South Sudan Community Association of Western Australia, states that Mr Riak’s death has greatly impacted the community, particularly by reducing participation in local basketball teams because the sport reminds peers of the death of their leader and friend.

John Gaker, a community leader, told the Court that Alier’s death has left an indelible scar on his life and the life of his community; the community’s sense of security and innocence is now shattered.

Dr Ajak Duany Ajak, Lay Pastoral Minister at St Paul’s Congregation, Balga – Mirabooka Parish, lamented that many young mentees of Mr Riak had lost their motivation and are grappling with a sense of hopelessness since his death. Dr Ajak remarks that the youth of the parish feel a sense of despair and uncertainty about their own futures in response to the senseless violence.

Majok Wutchok, a community member, told the Court that this was not only an attack on Alier but also on the aspirations of many young people in his community who had looked up to him as a model of success. Mr Wutchok describes the collective despair and outrage of a community shattered by violence.

Summary

It is clear from these Victim Impact Statements that Alier Riak was a much‑loved son, brother, boyfriend, nephew, and community member. He played a significant role in the lives of many and appears to have been a significant role model for other young people. Many of the statements depict him as a young man with good prospects, who had much to offer the world. His loss has clearly had a profound impact on those who knew him. The tragedy of his senseless death has had, and no doubt will continue to have, widespread impacts for a long time.

Personal circumstances
Gebregiorgis

Aron Gebregiorgis, you are 24 years old. You are the third eldest of six siblings and, as has been noted, your younger brother, Teamrat Kassa, is your co‑offender in this matter.

You were born in Khartoum, Sudan, and with your family migrated to Australia as a refugee at age three. Initially, your family settled in Tasmania and remained there for about four years. You then moved to Melbourne where your father had better employment prospects.

Your parents have endured substantial hardship in the context of the wars that ravaged their home countries of Eritrea and Ethiopia. Your mother and father fled wars and spent a significant time in refugee camps in Sudan before migrating to Australia.

In the aftermath of those traumas, their relationship has for many years been tumultuous and this is said to have affected your development in a negative way. However, your parents’ relationship is said to have improved considerably in recent years.

You experienced learning difficulties from the outset of your education. You found it difficult to concentrate and were disruptive in classes. Your engagement with school became significantly more disruptive as you reached the senior years of schooling when you began to use drugs and experience your own personal hardships. However, you were never expelled nor required to repeat any years of schooling.

You began using cannabis in your early teens. Your education was disrupted by the suicide of a close friend in year nine. In the years that followed their death, your drug use increased, you ceased playing soccer, your behavioural issues worsened, and you became distant from your loved ones.

You abused cannabis, Xanax and alcohol to numb your pain. This led you to become increasingly anti‑social and you further separated from family due to feelings of personal shame. You stayed in half‑way houses and squats for extended periods as a result.

You attempted on several occasions to rectify your behavioural issues. Notably, on one occasion, you lived with your grandmother while she was being treated for cancer to assist her with translation and practical issues. You also engaged in some employment including at McDonalds and your father’s barber shop. You assisted with soccer tournaments which were being run in the local community on a voluntary basis.

Kassa

Teamrat Kassa, you are 22 years old. You were aged 19 at the time of your offending. You are fourth eldest in a sibship of six. As I have observed, your older brother, Aron Gebregiorgis, is your co‑offender in these proceedings. Otherwise, the rest of your family are described as law‑abiding. Your parents are respected in their community.

Your parents’ relationship difficulties and their negative impacts, as described earlier in these reasons with respect to your brother, also apply to you.

You attended Deer Park North and St Albans Primary Schools from grade two to six, and completed up to year 10 at Keilor Downs High School. After school, you completed a plumbing pre‑apprenticeship and worked for your father at his barber shop and for his friend who is an electrician.

You are a talented soccer player and were awarded a scholarship to play at your local club in Caroline Springs. Between 2016 and 2021, you volunteered at an annual soccer tournament which involved umpiring matches and assisting with clinics. You also acted as a manager and player, and assisted where necessary around the grounds. In this context, you were considered to be resilient, patient, and self‑sacrificing.

Prior to your remand, you developed an interest in recording music as a way of expressing your feelings.

You had one significant relationship which lasted for three years between the ages of 15 and 18. You have no dependents.

Like your brother, you abused several drugs in your adolescence and early adulthood. You instruct that Xanax has had the most deleterious effects on your mental state, memory and conduct. You have also disclosed using cannabis, ice and heroin. You have said that, at the time of this offending, you were under the influence of a combination of drugs at a level beyond what you ordinarily consumed.

Criminal history
Gebregiorgis

Gebregiorgis, you first came before the court on 6 August 2020 and were fined $500.00 without conviction with respect to charges of theft of a motor vehicle and committing an indictable offence whilst on bail.

Your next court appearance was on 26 February 2021 on which you were sentenced regarding a range of matters. The relevant offending ranged from intentionally and recklessly causing injury, robbery, unlawful assault, and stolen goods charges to various drug possession and provision of false details charges which had been adjourned in November 2020. The total effective sentence imposed by the presiding Magistrate was 60 days’ imprisonment and a 12‑month Community Correction Order (‘CCO’).

You have no outstanding matters.

Kassa

Kassa, your criminal history displays some troubling examples of violent conduct on your part.

You first came before the court on 7 April 2020 when you were, without conviction, placed on probation for six months for various offences, including theft of a motor vehicle, unlicensed driving, and robbery.

You appeared before the Children’s Court a further two times in 2020, on 9 June and 17 July, charged with similar offending and some assault and resist emergency worker offences. Your probation was extended on both occasions.

Your offending appears to have escalated during the following period, and on 29 March 2021 you were convicted of an array of offences, including carjacking, reckless conduct endangering serious injury, intentionally damaging property, dangerous driving, and others. The Children’s Court released you on a Youth Attendance Order for a period of six months.

On 16 February 2022, you were sentenced as an adult in relation to various assault‑based offences, including assault of a Youth Justice Custodial Worker and assault by kicking. You were also sentenced in relation to robbery, proceeds of crime, and some driving offences. The total effective sentence imposed by the presiding Magistrate was six months’ imprisonment and, upon release, you were to be placed on a nine month CCO.

Your counsel confirms that you have three outstanding matters.

In summary, both of you have thus served previous sentences of imprisonment. In both cases, the instances of your offending have become more serious as time has passed, and have involved occasions of violent offending.

Mental health

The Court did not receive any expert material with respect to your respective states of mental health.

Submissions for Kassa

Kassa, numerous character references, education and sports‑related certificates, a letter from Parkville College, and a letter from you to the Court and Mr Riak’s family respectively were provided to the Court on your behalf, in addition to your counsel’s written and oral submissions.

Your counsel submits that consideration of the circumstances of your childhood and early adulthood are seminal to this sentencing exercise, especially your prospects of rehabilitation.

Background and personal circumstances

I have discussed your background and personal circumstances above and do not propose to repeat them. I have taken these matters into account.

The Court’s attention is drawn to the character reference of Dr Berhan Ahmed, in which it is stated that you demonstrated ‘exceptional resilience and determination’ when navigating the challenges of integrating into the Australian school system. Counsel also highlights your father’s reference, in which you are described as a ‘joyful kid full of life and energy’. Reference is further made to the statement of Fatah Harun, President of the Oromo United Football Club, who states that the level of ‘resilience, patience, and self‑sacrifice’ you have given to him and your community is something that he could ‘never express in words’.

Your counsel notes that you have been in custody since your arrest. You are located in the same unit as your brother, and you are fortunate to have the continued support of your family whom you speak to via Skype every Sunday and by phone regularly. Counsel further states that you have been prescribed 30 mg of Avanza daily to assist with sleep. You have secured work which involves mopping the top level of your unit, and restarted a warehouse training course that you had previously discontinued.

Regarding specific deterrence in a broad sense, your counsel submits that the negative impact of your offending on your family is profound. They have been shunned from the community, lost their reputation, financial security, and stability, and your father suffered from a heart attack in March last year.

Circumstances of the offending
Objective gravity

Your counsel submits that while this unprovoked attack with knives in a public place is a serious example of the offence of murder, it is not so serious an example as to warrant imposing the prescribed maximum penalty, and does not fall into the worst category of the offence. The following factors are said to limit the gravity of your offending:

(a) you were one of the younger members in the offending group;

(b) you were not involved in any of the earlier incidents;

(c) your conduct was not associated with an intention to kill but with knowledge that it was probable that the conduct would result in really serious injury;

(d) there were no extended gratuitous acts of violence;

(e) although you did carry a knife with you, your offending was nevertheless impulsive and spontaneous;

(f) your post‑offence conduct was limited to wearing someone else’s jacket; and

(g) you left the scene at a later time when police were present.

As to the impulsivity and spontaneity of your conduct, your counsel contends that that the relevant part of your conduct happened in the moments after you drew the knife that was in your possession.

Your counsel submits that although you did not expect any trouble that night, in the milieu in which you moved, carrying a knife was not an uncommon thing to do.

As to why you engaged in the offending, your counsel conveys your instructions that you had ‘heard something that you did not like about something that had happened to an associate’.

Moral culpability

As to whether state of mind can affect the assessment of moral culpability, your counsel cites the following passage by the Court of Appeal in the matter of Barrett v The Queen (‘Barrett’):

The moral culpability of two different offenders does not turn solely on the category of mens rea which gave rise to their respective murder convictions. For example an offender who deliberately kills a victim with a single gunshot is not necessarily to be regarded as more morally culpable than a person who seriously assaults a victim and leaves them in an isolated place without medical help, being reckless as to the probability that they may suffer lasting incapacity or die. It follows from Aiton[2] that an offender who is guilty of reckless murder on the basis of foresight of the probability that the relevant acts will cause really serious injury is not necessarily less culpable than an offender who foresees the probability that the acts will cause the victim’s death.[3]

[2]Aiton v The Queen (1993) 68 A Crim R 578.

[3](2010) 27 VR 522, 528 (Maxwell P and Neave JA) (‘Barrett’).

Your counsel further refers to the Court of Appeal’s reliance on Aiton v The Queen, and in particular the proposition that

no assessment can be made of the level of moral culpability attached to a person who commits the crime of murder by reference simply to the category of malice involved. Obviously each case must be considered in light of its own facts.[4]

[4]R v Aiton (1993) 68 A Crim R 578, 597–8 (Phillips CJ, Crockett and Vincent JJ) (emphasis added).

In this context, counsel submits that the following facts are relevant to your case:

(a) there was no express planning;

(b) it was not a static event such that the ability to refrain, desist or retreat is more limited;

(c) the cause of death was not compounding injuries such that each wound increased the probability of really serious injury (and your culpability increased each time); and

(d) you were ultimately reckless as to the consequences of your actions, or, in other words, you had no premeditated plan to kill the deceased.

Plea of guilty and remorse

Your counsel submits that by your plea of guilty you have accepted responsibility for your actions. It is further submitted that you accepted a high level of responsibility from as early as the filing of your Defence Response, in which you did not dispute that you stabbed Mr Riak.

It is submitted that the timing of your plea was impacted by the appeal process referred to earlier in these reasons and, as such, your plea should be regarded as having been given early. Your counsel contends that you should not be disadvantaged in any way by the procedural history of this matter, in context of the trial judge effectively suggesting that the legal issue in question be referred to the Court of Appeal. In summary, counsel submits that the trial judge invited the procedural course that delayed your plea, and so you cannot be held responsible for that delay. Counsel contends that it would have been bold if not unhelpful advocacy to refuse the trial judge’s invitation.

As to the discount that should be afforded to your plea, your counsel submits that it should be substantial. In addition to savings on public resources, it is submitted that your plea avoided many young and traumatised witnesses and family members from having to endure the ordeal of a trial.

It is also contended that your plea of guilty demonstrates remorse. In support of this contention, counsel submits that seven of the character references filed with the Court on your behalf refer to remorse. For example, Asmeret Tikue states, ‘I strongly believe that Teamrat deeply regrets any wrongdoings he’s been involved in’. I will discuss these references later in these reasons.

Your counsel submits that your apology letters further support a finding of remorse. However, it is accepted that, in the context of you not surrendering yourself to police, giving a ‘no comment’ police interview, and there being no relevant expert opinion provided to the Court, your level of remorse on a spectrum is not at a high level.

Youth

It is submitted that your offending was not so serious as to extinguish the operation of your youth in the sentencing exercise. Counsel contends that your youth is a very important sentencing consideration, and that youth, impressionability, and immaturity remain important sentencing considerations, at least in terms of rehabilitation.

The following passage from DPP v JA & Ors was cited in support:

The law says that the youth of an offender should be a primary consideration for a sentencing court, where the matter properly arises. In the case of such an offender, rehabilitation is usually more important than general deterrence; rehabilitation benefits the community as well as the offender. There is a significant public benefit in rehabilitating a young offender, and maximising the prospect that they will go on to live a peaceful, productive and law‑abiding life.
However, those principles are not absolute; due regard must be had in each case to other relevant matters, including the seriousness of the offending, and whether there has been any prior offending. Generally speaking, the more serious the offending, the less the weight to be attached to youth. But the mitigatory effect of youth will be extinguished only in circumstances of the gravest criminal offending, and where there is no realistic prospect of rehabilitation.[5]

[5]DPP v JA & Ors [2023] VSC 531, [26]–[27] (Hollingworth J).

Your counsel makes further reference to comments with respect to the sentencing of young offenders in Azzopardi v The Queen,[6] which was recently restated in DPP v Pan,[7] and applied in DPP v Ledlin (‘Ledlin’).[8] It is contended that your offending demonstrates a level of immaturity commensurate with your age that warrants consideration, albeit tempered by the seriousness of your crime.
[6]Azzopardi v The Queen (2011) 35 VR 43, 53 [34] (Redlich JA).
[7]DPP v Pan [2002] VSCA 98 [49] (Priest, Niall and Emerton JJA).
[8]DPP v Ledlin [2022] VSC 826 [60] (Champion J) (‘Ledlin’).

Risk of institutionalisation and rehabilitation

Your counsel submits that, given the age at which you will return to the community after serving your sentence, the sentence imposed should take into account the community’s vital interest in avoiding recidivism and promoting behavioural reformation and rehabilitation. In that respect, counsel contends that you demonstrate good prospects of rehabilitation having regard to your plea of guilty and the accompanying acceptance of responsibility, your age, and the support you enjoy from your family.

Your counsel describes the majority of your life as law‑abiding, productive, and ripe with potential. It is submitted that although your criminal history is troublesome, you have not yet fallen into entrenched recidivism and, colloquially put, there is still room to move in a positive direction in your life. Your counsel informed the Court that you hold an ambition to become a barber and own a shop, mirroring your father, have a family, and lead a normal life.

Sentencing practices

Counsel notes that murder is a standard sentence offence for which the maximum sentence is life imprisonment and the standard sentence is 25 years’ imprisonment. Counsel cites the following passage from Phongthaihong v The Queen with respect to standard sentences:

In Brown v The Queen this Court, after reviewing the standard sentencing scheme, explained how the ‘standard sentence’ was to be given effect in the sentencing process. In summary, the standard sentence is a ‘legislative guidepost’, as is the maximum penalty. The standard sentence does not affect the instinctive synthesis; does not permit ‘two‑stage sentencing’; and does not require the court to identify the objective seriousness of the case under consideration for the purpose of comparing it with the ‘mid‑range’ standard sentence. The sentencing court is, however, required to explain how the sentence it imposes relates to the standard sentence.[9]

[9]Phongthaihong v The Queen (2021) 98 MvR 143, 52 [41] (Kyrou and T Forrest JJA) (citations omitted).

Counsel draws the Court’s attention to several cases which were said to be of some relevance. I have noted and considered these cases below in these reasons. It is submitted that the case of Ledlin is most comparable, as it involved a group attack on an unarmed person and the offender was aged 19 at the time of the offence and had substantial priors. It is submitted that the cases establish a range in head sentences of between 19 and 22 years’ imprisonment.

Regarding charge two, counsel reiterates that while you have pleaded guilty to the offence of recklessly causing injury, this was on a complicity basis as it is not clear who of the assailants was responsible for inflicting one or more of the stab wounds, so you are not being held directly responsible for actually inflicting any of the four stab wounds on Kuol Riak. With respect to the sentences imposed on your co‑offenders, the prosecution submissions as to parity are discussed below in these reasons and are not the subject of challenge. It is also accepted that cumulation is warranted because the charge involves a different victim. Moderate cumulation, it is submitted, is appropriate because the conduct constituting the offending was inextricably linked.

Submissions for Gebregiorgis
Objective gravity

Your counsel accepts that murder is the most serious crime on the criminal calendar, however, contends that an assessment is nevertheless required as to where on the spectrum of seriousness the offending sits.

Your Counsel identifies the following factors as relevant to assessment of seriousness in this matter:

(a) your victim was unarmed and retreating. He was also a person with a bright future and it is conceded that the victim impact in this matter is high;

(b) you were armed with a small knife and were in company with others;

(c) the attack occurred at night in a public place with bystanders in the vicinity;

(d) the attack was unprovoked;

(e) the offending was not planned or premeditated — rather, it was spontaneous;

(f) the attack lasted a matter of seconds; and

(g) it is accepted by the prosecution that your state of mind was that you were reckless as the causation of really serious injury.

During the plea, counsel was questioned regarding whether the objective offending in this case should be considered as elevated in contrast to that in Ledlin. Counsel accepted that there are relevant differences in this case, however, also noted that the accused in that case pleaded not guilty and that there were differences in respective states of mind.

Moral culpability

Regarding your level of moral culpability, counsel submits that recklessness as to causing really serious injury, the lowest or least serious state of mind by which murder is proved at common law, should in your particular case result in a finding of lessened moral culpability.

Counsel cited the following passage from R v Selimovski (‘Selimovski’) in its submissions:

All else being equal, an unplanned reckless murder is not as serious as a planned intentional murder. That is not to say that unplanned reckless murder cannot be as serious as, or even more serious than, planned intentional murders. Clearly, they can be. But, while a spontaneous decision to take a risk of a probability that a person will be really seriously injured is a grave thing to do, a considered decision to take another’s life in otherwise similar circumstances involves the gravest of actions.[10]

[10]R v Selimovski [2016] VSC 325 [76] (Croucher J) (Emphasis added) (‘Selimovski’).

By referring to this passage, counsel intends to draw the Court’s attention to the unplanned and spontaneous nature of your offending.

Counsel highlights your age as a matter of significance, and submits that a person of mature years, in contrast to your youth, would rightly be expected to have a greater appreciation of the level of risk of really serious injury or death in this type of offending.

Counsel contends that the quickness and spontaneity of your attack is evidenced by the deceased’s ability to immediately stand up and walk away afterwards. It is submitted that this demonstrates that you did not intend to kill Mr Riak because, had it been otherwise, you would not have let him walk away. Counsel argues that offenders who attack a person with knives intending to kill should be seen as more morally culpable than you in this instance, who was quick, spontaneous, reckless and not intending to kill.

Counsel distinguishes your offending from that in DPP v Noori (‘Noori’),[11] and DPP v Clover (‘Clover’).[12] Noori relates to an offender deliberately driving at speed into a crowd of pedestrians in a busy CBD intersection, killing one person and seriously injuring many others. The offender was sentenced to life imprisonment with a non‑parole period of 30 years. Clover involves an offender igniting petrol in an alcove where three victims were sitting and subsequently killed. The offender was sentenced to 30 years’ imprisonment with a non‑parole period of 24 years. Counsel submits that the recklessness exhibited in these cases is distinguishable as it extended to multiple victims and involved a high degree of danger more broadly.
[11][2019] VSC 172.
[12][2019] VSC 123.

Counsel also distinguishes your offending from that in DPP v Rider and Ong.[13] In that case, the offenders carried out a carefully planned drive‑by shooting. Counsel submits that the considerable planning and foresight of a probability of death involved in that offending is contrasted by the way in which you killed Mr Riak.
[13][2023] VSC 466.

When questioned by the Court, your counsel was unable to provide an answer regarding why you engaged in this offending. It is submitted that no answer can justify your conduct, and that there is ‘just simply’ the perceived slight noted by your brother’s counsel and touched on earlier in these reasons.

The Court questioned your counsel regarding why you carried a knife on the evening of the offending. In response, counsel submits that you had become inured to violence and the use of weapons because of your drug use and the social milieu in which you moved.

You counsel characterises your conduct as senseless violence engaged in with no thought for the future. It is accepted that you have caused a tragedy resulting in the loss of a person of great worth and potential, however, it is nonetheless contended that the Court’s focus ought to be on sentencing you in a manner that gives you hope for the future because you are not a person who is beyond redemption, nor without decency.

Matters in mitigation
Background and personal circumstances

Your background and personal circumstances are recited earlier in these reasons and I do not propose to repeat them here. I have had regard to those matters.

Numerous character references, a Youth Substance Awareness Program certificate, and apology letters addressed to the Court and Mr Riak’s family were filed on your behalf, in addition to your counsel’s written and oral submissions.

Your counsel contends that, although you share a similar background with your brother, there are some relevant differences. At school, you had difficulties and struggled with learning, particularly with literacy and numeracy. Your difficulties did not, however, involve you, in your counsel’s words, going over the edge into the abyss, although you increasingly became more distant from your loved ones. You have demonstrated a desire to be stable by reference to the care you have offered your family and your grandmother in particular. You desired to enter the real estate industry with your older brother although that did not eventuate. You also have engaged positively in the community by volunteering at several soccer tournaments. All of this is supported by the character references put on your behalf. However, your misuse of drugs and alcohol has had significantly debilitating effects on your attempts to establish yourself in a stable way as a young adult.

Despite these difficulties, you have had periods of employment including at McDonalds, at a landfill facility, factory jobs, and assisting in your father’s barber shop.

Experience in custody

Your counsel highlights that you have been in custody since you were remanded for this offending. It is said that you have not had one in‑person visitor in custody for over two years because of your shame about your conduct and a desire to keep your family away. You experienced some COVID‑19 related periods of quarantine and lockdowns. You have undertaken some alcohol and drug education. The earlier mentioned certificate supports the submission that you have undertaken 24 hours of substance abuse education spread over about a week.

Your counsel puts that you were prescribed 45 mg of Avanza due to symptoms of depression and anxiety at the commencement of your remand.

It is also submitted that, having regard to considerations of parity, you have only spent one more day in custody than your brother.

Plea of guilty and remorse

Counsel submits that although your plea was not temporally early in the conduct of these proceedings, it should nevertheless be considered as having been offered at an early practical stage for two reasons. First, it is submitted that you had up until recently been charged with offences which you denied. Some negotiation following committal evidence from a pathologist resolved issues as to your state of mind and whether you had landed the fatal blow. This evidence allowed you to plead when you did. Secondly, there was a genuine legal issue to be tried (which I have referred to earlier in these reasons). It is contended that you indicated your intention to plead guilty and were arraigned soon after the High Court refused special leave and the arguable legal issues were resolved.

Your counsel contends that several factors are indicative of your remorse, namely:

(a) your plea;

(b) you handed yourself in to police;

(c) you made comments to your father that ‘this [was] not [you]’;

(d) character references describe you as being, inter alia, ‘conscience‑stricken’; and

(e) your letter of apology.

Ultimately, it is submitted that you are entitled to a substantial discount due to your guilty plea.

Youth

Your counsel notes that you were aged 21 when the offending occurred and are currently aged 24. It is accepted that the force of youth as a mitigating factor diminishes in cases of serious offending, such as the present, but should not be extinguished. It is contended that your young age still has some work to do regarding your prospects of rehabilitation, the structure of your sentence, and the non‑parole period to be fixed.

Family support

Counsel submits that your family has remained supportive of you in spite of the difficulties which you have all confronted. Other than your brother, your siblings are law‑abiding and several of them are adults who are establishing themselves effectively in the community. Your wider family and others in the community were shocked by your offending. It is submitted that, altogether, your family and wider social network would provide a positive foundation for your re‑integration at the appropriate time.

Application of standard sentence scheme

It is submitted that the standard sentencing principles set out by the Court of Appeal in Brown v The Queen fall to be applied.[14]
[14][2019] VSCA 286.

It is further submitted that s 11A of the Sentencing Act 1991 (Vic) applies such that if the sentence imposed is 20 years’ imprisonment or more, a non‑parole period of at least 70% must be imposed. If the sentence is below 20 years, a non‑parole period of at least 60% must be imposed unless the Court considers it is in the interests of justice.

Current sentencing practices

Counsel draws the Court’s attention to a number of cases which were said to be of some relevance. These are set out in written submissions filed on your behalf and I have had regard to them.

Submissions for the prosecution

The prosecution relied on one set of written submissions dated 30 August 2024 with respect to you both.

Offence gravity

The prosecution submits that it is axiomatic that murder is an intrinsically serious offence, being the most serious of all criminal offences. It is contended that your offending falls within the upper range of objective gravity,[15] and reliance is placed on the following factors in support of that contention:
[15]In written submissions, the prosecution initially submitted that the offending fell within the mid to upper range of seriousness. That submission was revised on the plea to upper range.

(a) you both committed the murder in the company of other offenders;

(b) you were both pre‑armed with knives, being bladed weapons, and you used the weapons to attack the deceased;

(c) together, you inflicted multiple injuries, including eight stab wounds, with the prosecution case being that each of you inflicted at least one stab wound;

(d) your attack took place in a public place with many onlookers;

(e) your attack was unprovoked and followed a period when there had been a separation from the two groups, and a period when you could have ‘cooled off’; and

(f) Alier Riak was not an aggressor, but was seeking to protect his brother from further attack, was fleeing from both of you pursuing him, with you attacking him jointly and persistently over a protracted period while he was unarmed and in a vulnerable, defenceless position, and generally retreating from you.

With respect to your charge of recklessly causing injury, Kassa, the prosecution submits that the following factors are relevant to objective gravity:

(a) although not suggesting that you were responsible for using the knife that stabbed your victim, you committed the offence in the company of your co‑offenders Sari and Deng, acting on a complicity basis;

(b) the attack involved a bladed weapon in a public place with many onlookers;

(c) the attack was unprovoked; and

(d) your victim was in a vulnerable position while you and the others attacked him persistently and over a protracted period, as he was attempting to retreat.

Moral culpability

The prosecution cites the principle in Barrett referred to earlier in these reasons and submits that the moral culpability of an offender is to be determined ultimately by reference to the relevant facts particular to an individual case.

It is contended that you each hold a high level moral culpability for your offending. In support of that contention, the prosecution relies on the factors set out above and, in addition, that:

(a) your conduct involved a high degree of recklessness;

(b) you each had opportunities to desist from the attack but failed to do so;

(c) you each left the deceased in a clearly injured state and failed to assist him;

(d) Kassa, you watched on as police and ambulance attended before you fled the scene with the offending group, wearing different items of clothes; and

(e) Gebregiorgis, you left the scene almost immediately, separately from the offending group, and changed items of clothing.

It is submitted that the case of Selimovski should be distinguished. In that case, the offender spontaneously discharged a firearm at the deceased in a state of panic. In contrast, the prosecution submits, you both drew knives and pursued your fleeing victim, demonstrating a clear intention to attack. Your victim was unarmed, and vulnerable.

The prosecution firmly rejects the contention that your offending was ‘effectively spontaneous’ and submits that it was at least ‘shortly pre‑planned’.

Aggravating factors

Kassa, at the time of your offending you were subject to a CCO, including for the violent offences of affray and assault.

It is submitted that the fact that the offending might have been worse in the presence of other aggravating features does not reduce your moral culpability.[16]
[16] Stephens v The Queen (2016) 50 VR 740 [26].

Sentencing purposes

With respect to you both, the prosecution submits that the sentencing purposes of just punishment, general deterrence and denunciation weigh heavily in this case. First, the special significance that the law attributes to the sanctity of human life and the opprobrium attached to its needless taking are said to require a sentence that is just and demonstrates to the community this Court’s profound commitment to denouncing killing without lawful justification.[17] Secondly, it is submitted that, in view of the plague of knife crime in the community, there is a clear need for sentences which deter and justly punish such offending.[18]
[17]R v Gemmill [2004] VSC 30 [57].
[18]DPP v JA [2023] VSC 531 [31].

With respect to specific deterrence and community protection, the prosecution contends that:

(a) Regarding Mr Kassa:

(i) at the time of offending, you had already appeared in sentencing courts (once in the adult jurisdiction) on five occasions, including for violence;

(ii) you have received custodial and non‑custodial sentences but those sentences have not deterred you from reoffending; and

(iii) you were subject to a CCO at the time of your offending.

(b) Regarding Mr Gebregiorgis:

(i) you have prior convictions for violent offences, which have involved appearances in the adult jurisdiction; and

(ii) you have been subject to custodial and non‑custodial sentences and have not shown that those sentences have deterred you from reoffending.

Matters in mitigation
Guilty pleas

The prosecution submits that although you are entitled to benefits flowing from your pleas of guilty, those benefits should be moderated by the late stage at which the pleas were entered. In this respect, the prosecution notes that:

(a) you both contested the committal proceeding;

(b) you both unsuccessfully challenged the statutory law on complicity on a case stated, including on appeal to the High Court;

(c) you were both initially only prepared to resolve the matter on a charge less than common law murder; and

(d) Gebregiorgis, you denied forming an agreement with your brother and causing the death of the deceased.

As to the case stated, the prosecution firmly rejects your effectively collective submission that proceeding to the Court of Appeal and the High Court was a course invited by the trial judge and therefore should not negatively impact my assessment of the timing of your guilty pleas. Counsel for the prosecution stated:

It is, in my submission, stretching logic to suggest that because the lawyers saw a way of potentially escaping liability entirely on a wording of complicity that has been around for many years, that on losing that argument you can then come back and say still this should’ve been an early plea … Both of these accused were prepared to take this to the High Court and the Court of Appeal and to potentially ride out on the back of that and seek an acquittal on these matters if the Court rulings go in [their] favour. But, they didn’t, so now we get the benefit of saying, well, we were always prepared to plead it … I accept that these are pleas of guilty that have utilitarian benefit … but they do come, in my submission, late in the process.

Remorse

The prosecution submits that while you have demonstrated some degree of remorse, it is not at a high level, and there is no evidence that your pleas of guilty are indicative of genuine contrition.

Accordingly, it is submitted that neither your guilty pleas nor your character references indicate a high level of remorse.

The prosecution further contends that your respective apology letters fail to demonstrate genuine remorse, and that any remorse is ‘situational’ and ‘convenient’ in that the letters appeared to be dated the day of the plea hearing, were not proffered months in advance, and are the first time you express remorse for taking someone’s life in any filed document.

Youth

The prosecution submits that youth does not apply automatically as a mitigating factor,[19] and should have a reduced impact in this sentencing exercise given:
[19]R v Mills [1998] 4 VR 235, 241; Bowen v The Queen [2011] VSCA 67 [39].

(a) the gravity of the offence of murder you committed, the circumstances in which your offending occurred, and the increased importance of other sentencing objectives as a result;[20]

(b) that there is no evidence that either of you were so immature at the time of your offending, compared with a person of more mature years, that you had an underdeveloped appreciation of the risk inherent in using a knife to stab another person; and

(c) that yours is yet another example of knife crime committed by young offenders.

[20]Azzopardi v The Queen (2011) VR 35 [44].

Risks of institutionalisation

While it is accepted that preventing institutionalisation is relevant to this sentencing exercise, the prosecution submits that it must not overshadow the objective gravity of the offending in this case nor the other sentencing principles to be applied.[21]
[21]The Queen v Chol [2022] VSC 341 [54].

Parity with respect to recklessly causing injury

Regarding the charge of recklessly causing injury, the prosecution submits that parity considerations apply as between you, Kassa, and your co‑accused, Sari, Lado, and Deng.

It is submitted that, although Sari was charged with intentionally causing injury and your charge involved recklessness, you were, in contrast, found to be holding a knife during the attack. You and Sari have a similar history for violent offending. While you are younger than both Lado and Deng, you were more involved in the altercation than both of them.

Current sentencing practices

The prosecution draws the Court’s attention to several cases which are said to be of some relevance to sentencing you for the offences of murder and recklessly causing injury. I have considered these cases below.

Analysis and discussion
Sentencing factors
Maximum penalty

As I have observed, the maximum penalty for murder is life imprisonment. It is a standard sentence offence, and the standard sentence is 25 years’ imprisonment. The maximum penalty for the offence of recklessly causing injury is five years’ imprisonment. This latter offence applies only to you, Kassa.

Murder — seriousness of the offending

As to the seriousness of your offending, in respect of both of you, I accept the submissions of your counsel that your offending was not planned in advance and that the events unfolded relatively quickly and spontaneously. I am unable to determine exactly when your decisions were made to draw weapons and attack, but it was likely a short time before the attacks took place. Despite this, having heard the submissions and considered the evidence, I have formed the view that your attacks did not end quickly. Furthermore, the persistent nature of the pursuits which occurred, and the number of knife wounds inflicted, demonstrates that the attacks are a long way short of instances of a single, spontaneous blow with a knife.

You both ran after Alier Riak and chased him down. You initiated the physical violence that led to you killing him. Your actions at that point, and until the conclusion of the offending, were unprovoked, highly aggressive, and persistent. I am quite satisfied that Mr Riak must have been terrified by what was occurring.

I am unable to say what caused you to attack Mr Riak, and no real explanation has been offered. Whatever caused this outburst of brutality by both of you, it would never have justified your actions nor minimised your roles as the aggressors.

In this context, you both produced knives you had in your possession and so armed yourself in an offensive manner. This was completely unnecessary. Alier Riak was no threat to either of you, as he was running away, and it may be clearly stated that he was at all times on the defensive, and at certain moments very vulnerable to the attacks you carried out. Knives were used at moments when your victim was backing away from you and posed no threat to your safety. Indeed, it is clear to me that you pursued Mr Riak from the beginning to the point where you stabbed him. In overall terms, you were the aggressors and persistent pursuers in these events, and you intended to carry out violence, which you both did.

It is also of concern that not only did you attack a person who was not known to you, but you did so brazenly in a public place, in front of many onlookers. It is well understood that public places such as this are popular areas in which people are entitled and expect to enjoy safely. Actions such as yours shatter the public’s confidence to feel safe in open places of enjoyment. The Court of Appeal has described such attacks as the ones you carried out as a ‘scourge on society’ that must be vigorously denounced. General deterrence and denunciation must therefore play a significant role in the sentences to be imposed. The Court must firmly condemn the behaviour of both of you, and the community will expect that to occur.

Furthermore, neither of you stayed to determine the seriousness of Alier Riak’s injuries. Instead, you both sought to avoid the consequences of your actions by withdrawing from the immediate area, whilst to some extent disguising your identities. In these circumstances you showed no remorse, and no concern for the person you assaulted so viciously. These were the actions of cowards and show that you attempted to escape responsibility for what you had done, doubtless with the hope that you would not have to face up to, and account for, what you did.

In all the circumstances, I find that your actions were highly aggressive, unjustified, and cowardly. The assaults were committed in anger against a completely innocent victim who was unknown to you, and who found himself alone, and was chased down by you both and attacked with knives. You had plenty of time to retreat, but you instead pursued and attacked him. Your offending is serious, in my view falling in the upper range of seriousness. Nothing approaching an explanation has been provided for your actions. In my opinion, yours are examples of wanton, unrestrained, and brutal street violence which, as a savage and persistent public attack, must be strongly condemned and deterred. Your offending was outrageous.

Moral culpability

As far as moral culpability is concerned, much of what I have already said demonstrates to me that the actions of both of you must be regarded as being at a high level of culpability. In my opinion, there is little to distinguish both of you in this regard. Neither of you has presented any viable explanation for what occurred. Furthermore, neither of you have presented any expert material which might help explain in a causal or mitigatory way why you committed murder and, in your case, Kassa, an assault on a second victim. I am at a loss to understand why you both committed these offences.

Recklessly causing injury — seriousness of the offending

As to the offence of recklessly causing injury, noting that this offence applies only to you, Kassa, in my opinion this too was offending at a serious level. You attacked Kuol initially, and then went on to continue your assault on him after attacking his brother in the manner described, adding to the overall seriousness of your conduct. Not only were you involved in the savage attack on Alier Riak, who was killed, but you also were involved in the attack on his brother, Kuol Riak, again, with a knife. I have taken into account that the injuries inflicted on Kuol were not eventually regarded as serious, but that is not the end of the matter. The overall circumstances of what occurred compel me to view the attack on Kuol Riak as brutal in its circumstances and setting of unrestrained violence, which was carried out in the company of others who were also armed with knives, and using them. Kuol Riak also must have been rightly terrified of what was happening, and what might have happened to him, when he was being assaulted with bladed weapons by a group of young men. Kuol was entirely overpowered, unarmed, defenceless, and vulnerable to a sustained attack.

Moral culpability

Kassa, in respect of the offence of recklessly causing injury, given the overall circumstances that I have outlined, I assess your moral culpability as at a high level for the reasons I have discussed.

In summary, the savagery of the sustained attacks by both of you on both of your victims must be condemned as extremely disturbing, unjustifiable, and exhibiting a high degree of violence in a public setting.

Mitigating factors

I now turn to factors in mitigation.

In both of your cases, it is to be acknowledged that you have pleaded guilty to the offences before the Court. These pleas carry a utilitarian benefit in that significant court time and resources have been saved. Witnesses have also been saved the experience of having to re‑live the events, in particular, of course, Kuol Riak. Further, family and friends of your victims have not endured the trauma of a contested trial.

I do not accept the submission that your pleas were entered at the earliest opportunity. They came at a relatively late stage but, at the same time, I acknowledge that you were entitled to exercise your rights to establish the applicable legal principles to your circumstances. I have given this factor modest weight in your favour.

As to remorse, I am prepared to accept that you are both now sorry for what you have done. However, this state of contrition has taken some time to evolve and, in my opinion, is not yet complete. I accept the prosecution’s submission that your remorse was not immediately apparent at the time of your offending, and to that extent your immediate responses to your crimes were callous. I regard the level of remorse demonstrated as being limited in all of the circumstances.

As I have observed, no expert material has been relied on with respect to any mental health issues of potential relevance to the offending or your experience in incarceration. Accordingly, I am of the opinion that there is no reason why factors such as general deterrence, punishment and denunciation should be reduced in weight.

With respect to you, Kassa, I have taken into account all the matters of family background, character and other material filed in support of your circumstances including your youth, the risk of institutionalisation, and prospects of rehabilitation.

With respect to you, Gebregiorgis, similarly, I have taken into account all the matters of family and personal background, character and other material filed in support of your particular circumstances including your youth, the risk of institutionalisation, and prospects of rehabilitation. I have noted in particular the fact that you have had no visitors across the course of your remand period, and you have found incarceration to be difficult.

I accept that both of you retain support of your family. I also acknowledge that, as the two of you are brothers, your family has been devastated by your actions, and there is doubtless significant grief from their point of view, and wider impacts for them in their particular communities.

Current sentencing practices

I have had regard to the cases highlighted by the defence and the prosecution, noting that no two cases are the same.

Sentencing purposes
General deterrence, denunciation and punishment

It is common ground between the parties that just punishment is an important consideration, and that a term of imprisonment is the only appropriate sentence in the circumstances.

Regarding general deterrence, this principle assumes some priority in circumstances where public safety is put at risk,[22] such as cases involving street violence,[23] drugs or alcohol,[24] and unprovoked attacks.[25] General deterrence will also be of particular importance if the offending is committed in breach of a court order such as a CCO.[26] These factors are, to varying degrees, present in your cases, and in respect of you, Kassa, as I have noted, being subject to a CCO at the relevant time. I therefore consider general deterrence to be an important aspect in the circumstances of both of you, and there is little to distinguish between you in this regard.
[22]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).
[23]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).
[24]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).
[25]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).
[26]Buchwald v The Queen (2011) 38 VR 199, [191] (Hansen JA, with whom Redlich and Neave JJA agreed).

Furthermore, I note that, in the context of general deterrence, this offending was carried out in company with others, late at night, with knives. It involved seemingly unprovoked and brutal violence against an unarmed man who was trying to run away at the time. As noted by her Honour Justice Hollingworth in DPP v JA & Ors, violent knife crimes committed by young offenders have become far too common.[27] The consequences which flow from such attacks can be devastating for victims, their families, friends, and those who witness such incidents. It is also a real concern for the community, who need to be protected and to feel safe. There is a clear need for general deterrence in respect of such offending. I have had regard to the Court of Appeal’s comments in Armstrong v The King, and I note that the prevalence of this type of offending in the community is not a separate aggravating factor, but instead forms part of the context of the sentencing consideration of general deterrence only.[28]
[27][2023] VSC 531 [31].
[28][2024] VSCA 316 [68].

Further, it is important that the Court denounce both of your actions. A young life was tragically cut short in a brutal display of street violence which involved the use of a weapon in a public place. Behaviour like yours cannot be tolerated by the community. Further, Kuol Riak was assaulted in the circumstances I have described by you, Kassa, and this behaviour must also be firmly denounced.

Specific deterrence, rehabilitation and protection of the community

In relation to specific deterrence, I have had regard to your prior criminal histories. I also accept that your pleas of guilty, some expressions of remorse, and what appear to be some positive progress of you both in custody, to some extent lessens the emphasis to be placed on specific deterrence. That said, specific deterrence must still play a role, as must community protection. However, at the same time, it is to be acknowledged that by the expiration of your sentences you are likely to be different people than you were at the time you committed these offences, and it is hard at this point to predict what that outcome will be. Community protection is of some relevance in the case of you both, but perhaps more so in the case of you, Kassa. You have a more serious history of violence which is worrying at your age. However, you are still youthful.

It is agreed between the parties that rehabilitation is an important consideration in light of your respective younger ages. Although the emphasis to be placed on rehabilitation decreases as the seriousness of the offence increases, I nevertheless consider that it should be given some weight in this instance given your relative youth.

The principle of parsimony in s 5(3) of the Sentencing Act 1991 (Vic) 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.

Finally, I indicate that I have considered the principle of parity of treatment as between the both of you in respect of the charge of murder, and as between you, Kassa, and your co‑offenders, on the charge of recklessly causing injury. In particular, I have had regard to, and taken into account, your respective roles in the offending; that you were both armed with knives and attacked in company with others; that you are younger than your co‑offender, Gebregiorgis, but have more serious prior convictions, and were subject to a CCO at the time you committed this offending, and such mitigation as there was that has been presented on behalf of both of you.

Furthermore, you, Kassa, fall to be sentenced in respect of two charges before the court, thus I indicate that I have taken into account and applied the principle of totality when considering the appropriate total effective sentence to be passed on you.

Impact on victims

Finally, I am acutely mindful of the impact of your offending on your victims, and others affected by your crimes. The impact material placed before the Court has been compelling and points clearly to the waste of what would have been a contributing and useful life, and also the agony of Kuol Riak, and his family and friends. I have taken all of this material into account.

Sentence

Aron Gebregiorgis, having taken all of these factors into account, I sentence you to be imprisoned for 25 years.

I order that you serve 19 years’ imprisonment before being eligible for parole.

Teamrat Kassa, having taken all factors into account, on the charge of murder I sentence you to be imprisoned for 25 years.

On the charge of recklessly causing injury, I sentence you to be imprisoned for three years.

In respect of you, Kassa, I order that the charge of murder be the base sentence. I further order that 18 months of the sentence on the charge of recklessly causing injury be served concurrently on the sentence imposed on the charge of murder, making a total sentence of 26 years and 6 months.

I order that you serve 20 years’ imprisonment before being eligible for parole.

Section 6AAA declarations

I have imposed on each of you a less severe sentence than I otherwise would have because you have pleaded guilty to your offending.

Pursuant to s 6AAA of the Act, I declare that but for your pleas of guilty, I would have sentenced you to:

(a) In the case of Aron Gebregiorgis, 30 years’ imprisonment, with a non‑parole period of 24 years.

(b) In the case of Teamrat Kassa, 30 years’ imprisonment on the charge of murder, and 4 years’ imprisonment on the charge of recklessly causing injury with a non‑parole period of 26 years.

Pre‑sentence detention

Aron Gebregiorgis, I further declare that that you have served 1,085 days of pre‑sentence detention, not including this day.

Teamrat Kassa, I further declare that that you have served 1,085 days of pre‑sentence detention, not including this day.

---

[2025] VSC 86

7 March 2025