R v Hothnyang
[2013] VSC 61
•5 April 2013
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No.0053 of 2012
| THE QUEEN |
| v |
| BORONIKA GAM HOTHNYANG |
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JUDGE: | KING J | |
WHERE HELD: | Melbourne | |
DATES OF HEARING: | 6, 7, 8 , 9, 13, 14, 15, 16, 17, 20, 21, 22 August 2012, | |
DATE OF SENTENCE: | 5 April 2013 | |
CASE MAY BE CITED AS: | R v Hothnyang | |
MEDIUM NEUTRAL CITATION: | [2013] VSC 61 | |
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Murder – 25 year old Sudanese woman – horrific background – mother of three young children – alcohol – abusive relationships.
Sentence 14 years with a minimum of 10 years and 6 months imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms Michelle Williams S.C. | Office of public Prosecutions |
| For the Accused | Mr Gavin Meredith | Greg Thomas Barrister and Solicitors |
HER HONOUR:
Boronika Gam Hothnyang, you have been convicted of one count of the murder of William Awu on 15 July 2011 at Dandenong. You were arrested the next day, on 16 July, and you have been in custody until today. You have pleaded not guilty and a trial was held commencing on 6 August 2012 with a verdict of guilty on 22 August 2012. It is most unfortunate that your plea was unable to be heard until 8 February 2013 as reports were being sought on your behalf. You are 25 years of age now, having been born on 15 September 1987 in the South Sudan. The maximum penalty for this offence of murder is life imprisonment.
There are two matters attached as being prior relevant criminal history. The first is at Dandenong Magistrates’ Court on 2 May 2005, a charge of being drunk in a public place for which you were convicted and discharged. The second is on 7 April 2010, a charge of recklessly causing injury, one of drunk in a public place and one of resist police. Without conviction they were adjourned and you were placed on a bond to be of good behaviour for a year. On 7 April 2011, those charges were dismissed. In relation to that matter, there has been produced to the Court, a LEAP summary of the offending. This offending was supposed to have occurred on Saturday 26 April 2008. You had entered a boarding house in an intoxicated state and when asked to leave you had refused. You were alleged to have bitten the victim on the right wrist. When he had tried to take you out of the boarding house you have hit him with your thong. You have tried to get away from him and bitten him on the back, causing a laceration. When you were outside you were arguing with other residents, somehow the victim must have obtained some form of handcuffs, which he used, until the police arrived. You were aggressive towards the police and resisted all attempts to get you into the rear of the divisional van. You were described as, extremely intoxicated and unable and unwilling to walk to the van, dropping to the ground every time the police tried to escort you there. Ultimately you had to be carried to the van and placed inside. When interviewed you denied assaulting the victim. What is clear is that alcohol is a significant factor in this offending.
In this case I have received 12 victim impact statements. Ten of those victim impact statements are from William Awu’s brothers and sisters, being Peter Awu, Teresa Awu, Philip Awu, Joseph Awu, Sunday Awu, Nguro Awu, Nyacian Awu, Emmanuel Awu, Rebecca Awu and Maria Awu. The other two reports are from his mother Akica Ajang and John Kuldite. Each of those victim impact statements from his brothers and sisters, some obviously very young brothers and sisters, refer to the shock of his death, that he was a good, responsible and helpful person who had been studying hard and trying to make a better future for himself. They have made it clear that this death, this loss of William, has caused deep pain within the family. The much younger children refer to the fact that William bought them presents for Christmas and that they liked him a lot. William’s parents described him as shy and humble and a very non-violent person, always polite, respectful and kind to his friends. The only person amongst his family who appeared to deal with the reality of William’s problems was Sunday Awu, when she said and I quote:
William was a good person. He was one of the quietest people in the whole family. He was peaceful and he never started or looked for trouble. William loved drinking with his mates. He was one of the people who told me to stay out of trouble all the time. William is the best brother I ever had. He was there for me. If I needed someone to talk about my problems, if I needed any kind of help, he was always there for me. Now that we have lost him we are in shock. Before the incident happened he was in the hospital for a serious sickness but he made it out of hospital alright. Then he went and did a course in the transportation industry and he finished it. After his death we received his certificate in the mail. William and I were tight. We both understood each other and what it was like to try and stop drinking. Maybe it was also because no one in our family understood or liked us drinking.
William was the third child of the family and had fled with them to Egypt in 2002 before being granted resettlement in Australia in 2004. He had enrolled in an English language course, but failed to complete the course and had been employed in a variety of labouring positions, in farms and elsewhere in both Victoria and New South Wales. At the time of his death, William had just been released from the Dandenong Hospital approximately six weeks prior to his death, for a severe case of pulmonary tuberculosis. He was advised to discontinue smoking cigarettes and consuming alcohol. He had resided with one of his sisters in Clayton South for three weeks, after being released from hospital, and in the three week period leading up to his death stayed with a variety of associates and friends, including the witness John Oleyo, but had moved in with you a few days prior to this killing.
Whilst William had significant alcohol problems, as do you, it is clear that he was a much loved member of this large warm family. His loss is felt by them acutely and most particularly by his mother and his father. They have come to this country from the war torn Sudan, bringing with them their children in the hope of there being a better future and more opportunity for them to lead peaceful and happy lives. They are, not surprisingly, very sad that in respect of William, all of that has not managed to keep him alive.
The circumstances of this offending are really quite inexplicable. The crime itself appears quite motiveless and alcohol seems to be a very significant factor in relation to all aspects of this death. William John Deng Awu, who was aged 26, and you, who was aged 24, were known to each other. You were both members of the Sudanese community, who unfortunately, met on a regular and far too frequent basis in the Dandenong and Noble Park area for the major purpose, it would appear, of drinking alcohol and some socialising. The majority of the persons involved in this socialising and drinking were male Sudanese. One of the places at which you regularly met and socialised was the skateboard park in Dandenong, which was actually the John Hemmings Memorial Park on the north west side of the Princes Highway, Dandenong between Potter and Robinson Streets. The significance of the park and its location is that it is approximately 150 metres away from where you lived at Flat 23, 44 Princes Highway in a two bedroom first floor flat owned and managed by the Department of Human Services. You have lived there since 9 April 2006. At the time of William’s death Haitham Lohide, your boyfriend, was also living with you. William Awu had been staying in the unit, with you both, for a period of some days prior to his death.
On Thursday 14 July 2011 you, the deceased man William Awu, Akutmal Ajak, commonly referred to as Khamis, Peter Guk, John Baba Oleyo, Michael Carlo and Haitham Lohide all went to the skate park and consumed a significant quantity of alcohol. The police arrived at 2.45 pm and, of the persons in the park, William Awu was spoken to and arrested for being drunk in a public place. Like a number of the others in that group, including yourself, William Awu was regularly involved in excessive consumption of alcohol, at that period. William was taken to the Dandenong Police Station, where he was lodged in the cells at 3.05 pm. The persons who were still in the skate park then left and with you, moved across to your flat across the road in Princes Highway, where you continued to drink through that day. William was released from the Dandenong Police Station at 8.31 pm, on that same day and at some point, during either the late evening or the early morning hours, he arrived back at your flat where he slept in the sitting room. You and Haitham Lohide also slept in the flat, in the bedroom you shared. Akutmal Ajak and Peter Guk also slept at your premises overnight.
The following morning you all awoke around 8.30 am and a short time later you asked Peter Guk and Akutmal Ajak to go to Liquorland to purchase some alcohol. Liquorland was approximately 150 metres away from your premises. They purchased some cask wine, returned to the flat and the consumption of alcohol recommenced.
There was a degree of dispute during the trial, as to precisely which persons arrived at which time, how much alcohol was consumed, how long people had left the apartment for, when they returned, and matters of that kind. What I am satisfied of, to the required standard, is that the two young men did purchase white wine and that you, with others, commenced drinking in the early hours of the morning. You became upset about a repair, which was supposed to have happened in relation to your front door, which had not yet occurred and you left with Akutmal Ajak and walked to the Department of Human Services housing office in Lonsdale Street, Dandenong. You were noted as being intoxicated, loud, unsteady on your feet and upset. You were trying to complain about the failure to fix your door and you were advised to call the relevant call centre for repairs – there being a phone located in the office for that purpose. Akutmal Ajak was also described as being loud and somewhat aggressive.
You returned to your flat in Princes Highway. Michael Carlo had returned to the flat at some point in the morning, but had left to attend an employment service meeting, returning later in the afternoon.
There would appear to have been points of tension during the time at the flat, matters, which one would not presume would give rise to great agitation, but which did cause you to react with a degree of anger. They include, your then boyfriend Haitham Lohide teasing you about the fact that you’d come from Kenya, with you insisting you had come from Egypt. That was teasing which William Awu joined and you ultimately went into your bedroom and returned with documents to prove that you had come from Egypt rather than from Kenya.
At a later point in the afternoon, Haitham Lohide encouraged William Awu, who was quite a talented drawer, to do a sketch of you in the form of a caricature. It was in a form indicating that you were overweight and it would appear that Haitham Lohide was teasing you about this. You indicated angrily, to Mr Awu, that he had better not draw any more pictures like that and you indicated, to both of them, being Haitham Lohide and William Awu, that they had better stop this sort of behaviour or there would be consequences. It was a short time after this that Haitham Lohide went to bed. Meanwhile the consumption of alcohol at your flat, continued through the afternoon. Two further people arrived, being John Baba Oleyo and Viviano Okanyi Tombi. Mr Tombi, being a rather aged man by comparison, being in his late 50s - was the one who used a walking stick and was slow. You were not pleased to see Viviano Tombi arrive and there was some dispute between you, but you calmed down shortly after.
At around 2.15 that afternoon, the people that were present in your flat, apart from yourself and William Awu, were Akutmal Ajak, Michael Carlo who had returned, Peter Cooke, John Baba Oleyo and Viviano Tombi, with Haitham Lohide asleep in your bedroom. It was around this time that you got up from your chair and placed your arm around, or near, the neck of William Awu, which initially people thought was something you were doing for fun, but it became clear that William Awu was struggling to breathe.
Michael Carlo and John Baba Oleyo, with a combination of words and actions, removed your arm from around William’s neck. He was still seated. You recommenced drinking with the other witnesses, as though nothing had in fact occurred. The alcohol in the premises ran out at approximately 3.30pm. A short time later John Baba Oleyo and Michael Carlo said that they would walk to Liquorland to purchase some more wine. You told those present, that Michael Carlo should remain at the address and it was more appropriate for Akutmal Ajak, to accompany John Baba Oleyo to buy more wine. A short time later Ajak and Oleyo went to Liquorland, they were observed on closed-circuit television purchasing a cask of wine at 3.49pm. When they left you told the others remaining, being Michael Carlo, Peter Cooke and Viviano Tombi that you were going to bed, and you then walked to a bedroom at the rear of the premises.
From this point on, apart from the witness Michael Carlo, no witness told the truth of what occurred or what they actually observed in your flat. But I accept, consistent with the verdict of the jury, that after you had been in your bedroom a short time, you left your bedroom, returned out to the lounge room, then walked into the kitchen area to obtain a knife. The deceased was in the chair in the flat and was believed to have fallen asleep, due to his very high level of intoxication, which was .42. You came out of the kitchen, holding the knife behind your back, you approached towards William Awu, who was asleep in the corner, you brought the knife around from behind your back and stabbed William Awu in the chest area. You stabbed him once only. It was a forceful blow.
Michael Carlo and Peter Cooke ran from the premises, out the front door and down to the Princes Highway. They ran into the witnesses Oleyo and Ajak, who were on their way back with the alcohol. They were told what had occurred and a decision was made to contact the police. This call was at approximately 4.03pm. Tombi joined them later, as he was slower to leave the premises, due to his being on a stick. Tombi said, that you had in fact stabbed William three times, when he joined the others at the Princes Highway, but this was false.
The police arrived at approximately 4.10pm. They found William Awu, out of the armchair, facedown in a semi-kneeling position on the floor. You and Haitham Lohide were found together, in a double bed, in the rear bedroom of the premises.
You pretended to be asleep, or you were asleep; either, it being not relevant which of those situations you were in. But both you and Lohide were fully dressed.
The paramedics arrived at 4.26 and the deceased was found, to not be breathing, or to have any cardiac rhythm. However, attempts were made to resuscitate him, which were unsuccessful. A number of the witnesses were taken into custody, as well as yourself and Haitham Lohide. The knife, that you had obtained and used, was found in the kitchen sink. It was appeared, that your behaviour when arrested was difficult, that you were obviously alcohol affected, and when you were finally interviewed in respect of this matter, you indicated that you had no involvement in the death of William Awu, that you were asleep in bed when the fatal injury was inflicted.
The examination by the pathologist revealed that there was one single stab wound, which was 12cm into William’s chest, it was in an upward motion and damaged both the left and right ventricles, ensuring massive blood loss. In the premises, there were three empty wine casks located in the kitchen, as well as five coffee mugs, two of which, appeared to contain white wine.
The jury, having convicted you on murder, must have found that, despite your obvious inebriation, you had formed at least an intent to do really serious injury to William Awu. I am not satisfied that they would have found, that you had an intent to kill William Awu and I will act upon that basis.
That this crime is a tragedy cannot be doubted. William Awu has fled the war torn Sudan to come to Australia to live hopefully, peacefully and with more opportunities for a happy, educated, employed and useful life. However, it would appear that, William also struggled significantly, in relation to alcohol. A reading of .42 is exceptionally high and is an indication of someone who has built a very high tolerance for alcohol. It is most unfortunate that the police did not breathalyse you, or do something to ascertain your level of drunkenness, at the time of this offending. Whilst I understand they do not have the power to force anyone to participate in something like a breathalyser test or a blood test, it would be of greater use to the courts if such a request was at least made by the police in the future, to try and allow some greater comprehension of the facts surrounding cases of this type. I do intend to act upon the fact that you were significantly affected by alcohol. The evidence from witnesses at DHS indicate that you were alcohol affected at approximately 12.30, this having occurred at approximately 4pm and the evidence being that drinking continued; in my view, it is the only reasonable conclusion to be drawn from that evidence.
The waste of William Awu’s life in this manner, is tragic. Equally, the waste of your life in this manner will also be a tragedy. For there is no doubt your life will be wasted, in that, what should be some of your most productive years of your life will be spent in a prison environment, separated from your three children and the little family that you do have here.
It is a disturbing matter to note that you and the persons with whom you were gathered, including the deceased, are not the first, second, third or similar groups of Sudanese that have come before the courts on serious charges which can be directly linked to the consumption of large quantities of alcohol. Quite recently, Coghlan J, as he then was, in the matter of R v ZN[1] stated:
31I have had regard to your psychological and psychiatric difficulties particularly those which come out of your background, in particular your symptoms of post traumatic stress disorder and your dissociative disorder. There is difficulty however in knowing what weight can be given to those matters because of their combination with your abuse of alcohol. Your drinking has been a major problem. I think it is borne to some degree out of the matters which are involved in your history and the place you see for yourself in society. There does however appear to be a sense of hopelessness for you and your group.
32The fact that large groups of young men of African background spend a large portion of their lives drinking for no other reason than to get drunk reflects poorly on us. The parallels to what has happened and is happening among young African men and what happens to young Aboriginal men is inescapable and something must be done about it.
That comment applies equally to you, as a young Sudanese woman mixing with these young African men.
[1][2012] VSC 616 at para 31.
I also have to take into account your personal circumstances and background. I received six reports in relation to you. First, by Dr Lester Walton dated 9 December 2011; a report dated 13 December 2012 from Pamela Mathews, forensic psychologist; a report from Dr Sue Drummond, psychiatrist at the Dandenong Hospital In-Patient Unit, who completed a report from your clinical file; a report dated 10 September 2011, from VOSS, being the Victorian Occupational Support Service, prepared by Dianne Perrett-Abrahams, forensic and clinical psychologist; and a report from Penny McDonald, psychologist and counsellor/advocate at WestCASA, dated 15 November 2012. I have read each of those reports a number of times. I will not be acting upon the report prepared by VOSS as it does not comply with the impartiality expected of anyone purporting to be an expert witness. It contains many irrelevancies, personal opinions not related to professional opinions, quite disputed factual material, and, is overall, inconsistent with the majority of the other material which I have received.
As I indicated during the plea hearing, I am concerned that what is being presented to the court under the guise of ‘expert reports’, are the views and opinions of persons who are now ‘barracking’ for a particular outcome. It has caused me to become more sceptical, of the value and reliability of reports being tendered on behalf of prisoners, that are written by psychologists. There needs to be some close scrutiny of the worth of such documents in the future. One of the major aspects of Ms Mathews’ report was a psychometric assessment. I am, once again, concerned that this assessment was done, firstly, in the English language, whilst for the purposes of the record of interview and for the purposes of the trial, it was considered necessary that you have an interpreter, to assist you to understand exactly what was occurring; here it is not being suggested that any interpreter was provided. Further, you have never been to any level of schooling, a matter to which I will refer shortly. Accordingly, I have some real problems, again, in accepting the results and, accordingly, the reasoning that flows from Ms Mathews’ testing.
In respect of your personal circumstances, there are somewhat different versions that have been provided to me, or to the writers of other reports. What is agreed is that you were one of six children born to parents in the Sudan. You grew up in Khartoum, your father was a factory worker, your mother did not work. There was a civil war in Sudan and you were never sent to school, either in Sudan or subsequently in Egypt. Despite the war in Sudan, your family-life was happy, as you described it to various writers. It would appear that at the age of 13 you went to Egypt.
The circumstances under which you went to Egypt are, it appears to me, significantly in dispute, according to the different reports. Ms Perrett-Abrahams says that you were forcibly taken from your home by your adult brother, without your mother’s knowledge, when you were 11 years of age and put to work as a domestic servant for an Egyptian family in Egypt, whereas Ms Pamela Matthews, psychologist, says:[2] At age 13 years she went to Egypt with her “uncle’s wife and my uncle’s kids and brother number three and the brother behind my back number six”. According to what you told Ms Matthews, you came to Australia at the age of 16. According to Ms Perrett-Abrahams, you came here when you were 13 and you came, not by choice but, as a result of force and your documents being taken away. All of this makes it very hard to work out the truth of the matter. What I am satisfied of is, that in Egypt, be it from age 11 or from 13, you worked as a domestic servant for an Egyptian family, and you were ill-treated by your brother and your aunt. You had an older boyfriend, whilst you occupied this position, and that relationship became sexual. There is discussion about you becoming pregnant and suffering a late miscarriage.
[2]At page 2.
You arrived in Australia either at 14, 15 or 16 years of age. The reports vary, but it was planned that you were to be sent to the United States of America, to marry an older man, in a prearranged marriage conceived by your aunt; the aunt with whom you travelled to Australia. According to the information you provided to Mr Walton, psychiatrist, you left the Sedan in 2001 and you came to Australia in 2003. Your date of birth is 15 October 1987. If you came to Australia in 2003 you would have been aged either 15 or 16. It is clear that the aunt, with whom you came to Australia, was indeed cruel, sadistic and manipulative, on any version of the materials put before me.
There are, unfortunately, very different versions of what occurred after you came to this country. One being that you met your boyfriend at school and defying your aunt, started a relationship with him and fell pregnant. Another version, that has been given is, that your aunt cajoled you into the relationship with a local person, to prevent the arranged marriage with the male in the US proceeding, but in all those versions you say, you were forced to undergo an abortion. Your first suicide attempt was reportedly following that event. You left your aunt’s home and went to live with your boyfriend, you became pregnant again, but your boyfriend, at that point, rejected you.
You have, since that time, become involved with a group of serious alcohol abusers. You have had contact with the psychiatric services and you have had three children. All of those are facts, I can easily determine from the material.
You have had, as I indicated, three children; a daughter Susan born on 8 November 2005, a son Ali born on 31 August 2007 and a daughter Elizabeth born on 11 September 2009. Each of these children, at some stage, have been removed from your care and placed in foster care, departmental homes, or with relatives, by the Department of Human Services. There are allegations and counter-allegations, involving the Department of Human Services and it is not my task, nor would it be possible for me, to determine the veracity of any such allegations or counter-allegations. I do not intend to do so. Each of these children were born to different male partners. Each of those partners has in some way abused, neglected or rejected you. As you suffered at the hands of your brother and your aunt, it would appear you also suffered at the hands of these different males.
In 2008 you were involved in a motor vehicle collision. You sustained fractures to your right arm, right ribs and a laceration to the left side of your forehead. You were rendered unconscious in the accident and taken to the Alfred Hospital. You were provided with a Ministry of Housing apartment in Dandenong, not long after the birth of your first child Susan, and you remained in that housing unit, apart from times in hospital, or some time at a friend’s, when you were seeking assistance with alcohol. The children are not with you, and were not with you, at the time of the offence being committed. They are currently with an uncle, with whom you have a good relationship. You have had a number of psychiatric admissions, to the Dandenong Hospital psychiatric in-patient unit. Your first admission was from 3 October to 22 October 2008. You were brought in, in an extremely intoxicated state, to the emergency department by police. Police informed the psychiatrist, that you had in 2005 attempted to jump off a bridge, but had been prevented from doing so by the police. During that admission, the psychiatric registrar Dr Yamaoka noted that you had commenced drinking alcohol, during your first pregnancy in 2005, which was supposed to be the same year that you had been involved in a car accident as a pedestrian. Which I assume to be the accident to which I have just referred in 2008. The psychiatrist noted, that at that stage you had lost custody of your two children aged three and 15 months, due to neglect of them and aggression when intoxicated. You were assessed and diagnosed with adjustment disorder, as well as alcohol dependence. You were not placed on medication when you were discharged.
The day after your release, you were again brought back into the emergency department by the police, after threatening the DHS worker who was home visiting, and had brought you bad news, about the children being unable to have access that day. You were described as, acutely agitated and requiring Midazolam for sedation in the emergency department. Your second admission was from 10 July to 31 August 2009. You were admitted, after multiple intoxicated presentations to the emergency department. You were 32 weeks pregnant and being treated for depression by your GP with Venlafaxine. You had your third child, whilst you were in care, and were transferred to the maternity ward. Your third admission was from 15 February to 1 March 2010. You had been apprehended outside a house in an intoxicated state. You had been, it would appear, pursuing money from the baby’s father and had gone to see a friend of Elizabeth’s father, for assistance. That person had given you alcohol and attempted to sexually assault you. The police had been called, the child removed by the Children and Protective Services, and you were suicidal. You had apparently, according to this information, abstained from alcohol from the time of the birth of Elizabeth, until that date in February 2010. A significant period for you. The court permitted Elizabeth to stay in the paediatric ward, whilst you were an inpatient in the psychiatric ward, and you were able to feed Elizabeth and have contact with her, whilst you remained an inpatient. You reportedly improved quickly, but a diagnosis of alcohol dependence was made, and you were later discharged, to the home of Migrant Resource Centre worker Deb Loupelis in Burwood. Your fourth admission was from the 1st to 14th December 2010.
You were brought to the hospital following a problem in respect of Elizabeth and your intoxication. You had started drinking with a family, informed people that you wanted to kill Elizabeth, had purportedly dropped Elizabeth on the ground and attempted to stab her with a piece of broken glass, whilst intoxicated. When the police arrived, you attempted to slash your wrists, and while in the cells you attempted to strangle yourself, with your t-shirt. Once again, after your withdrawal from alcohol in the unit, you improved quickly. Your fifth admission was from the 12th to 22nd January 2011, you were brought in to the emergency department by the police. You had been drinking and had become aggressive, cutting your arm with a broken bottle in the presence of friends. You stated, that you were drinking to wipe out images of your children’s sexual abuse, and said, you were drinking approximately one four litre cask of wine a day. The diagnosis of alcohol dependence and borderline personality disorder, was made. You were recommenced on an antidepressant and referred, for support and structured activities, upon your release. Your final admission was from 21 March to 28 March 2011. You had self-harmed by hitting your head on something and talking of suicide to a friend. When you were admitted you were intoxicated. You said, that you had been thinking about the alleged sexual abuse of your children and you’d been drinking for the preceding 10 days. It was an involuntary admission, and remained so, due to your ongoing suicidal ideation and your ambivalence about staying in hospital. Even when sober you were described as, still appearing depressed. A diagnosis of depression, secondary to alcohol dependence, and psycho-social stresses, was made and you were continued on antidepressants.
You likened the DHS workers and their criticism of you, to feelings equivalent to the rejection that you felt by your family, including particularly your deceased brother, who significantly maltreated you.
In the report by Pamela Matthews dated 13 December 2012, as is indicated on the first page of the report, no interpreter was present for any interview or cognitive assessment. According to Ms Matthews, the result of tests administered by herself and by Bridget Miles, provisional psychologist, were that your full-scale IQ was 46; falling between 43 to 51 at the 95% confidence interval. Your overall chronological age equivalent functioning was five years and two months. She came to the conclusion ‘In the writer’s view Ms Hothnyang would meet DSM IV diagnostic criteria for post-traumatic stress disorder, major depressive disorder, borderline personality disorder and alcohol dependence, with these diagnoses being intimately linked.[3] She also stated:
As noted by Dr Walton automatism is a possibility but given the quality of the evidence it cannot be confirmed. As Dr Walton notes it is not ‘far from frivolous’ to suggest that alcohol induced amnesia may explain her lack of memory and denials or that heightened arousal may also play a part in her absent memories and hence her denials. She is certainly cognitively unsophisticated enough to believe if she can't remember her actions she didn’t do them.’
[3]Page 9 of the report.
Dr Walton, consultant psychiatrist, in his report of 9 December 2011 stated:
Ms Hothnyang appears to be of normal intelligence. She does have quite limited literacy and numeracy skills, but I believe that is simply attributable to her lack of education. Gross memorising remains intact.
The only matters of which I can be entirely confident in your case are that you suffer severely from alcoholism. That you are, and have been whilst in prison, free of alcohol. You have gained weight, you have improved, you are learning English, you are doing all that you can to improve your life, with the hope that you will ultimately be reunited with your three children. Whilst I cannot be satisfied individually of particular things put forward in reports, when they are in conflict, I am prepared to and will act upon the basis, that you were removed from your family at a very young age, that you were sent to work at a very young age as a domestic, that your money was taken from you, that you were abused by your brother and by your aunt, that you had little control in your life and that ,you have had a series of disastrous relationships with males. All of which have contributed to the problems, that you have suffered in terms of your alcoholism. Your life has been horrific. Coming to Australia did nothing to help you escape from that horror and I will treat you as a person with a very deprived background, with little in the way of coping skills, but with some real prospect for the future. I am satisfied equally, that you wish to do something about your life, that you wish to be alcohol free, that you wish to have the custody and care and control of your three children, that you wish to be independent and able to be involved in their lives and in the lives of the community generally; that is a prospect that I think does have some hope of being realised in the future.
You now have a strong Christian faith, you are being supported by West CASA and I think you have a true desire to change. You did not plead guilty, you did not demonstrate remorse, but equally I accept that, it is to a large degree as a result of your lack of awareness or memory of what it was that you did on this night, rather than a deliberate attempt to avoid the consequences. It is clear that at that time you were consuming vast quantities of alcohol and, as can be seen from the very high reading that William Awu had, the quantities being consumed by people in and around you were equally of a high level. It is extraordinarily sad, for William Awu and his family, that he lost his life in this manner. It is sad and tragic for you, that you were the one who took it in these circumstances, where there was no malice or dislike of William, but in fact a friendship that existed. All of this is such a sad reflection on our society, that we have groups of seemingly dispossessed men and women who have been brought here as refugees, with little or nothing to do except drink their days away.
There are many factors I have to take into account, and your personal circumstances are just one of them: your age; the fact that you no longer have custody of your children and will not for a considerable period of time; the lack of premeditation; your lack of any significant prior offending; your horrific background and personal circumstances; your remorse, because I do find that you are remorseful, even though you do not remember committing this crime, I think you are very saddened by what happened to William; your prospects of ultimate rehabilitation; these are all matters that I take into account in your favour. They need to be balanced, of course, with matters of just punishment: deterrence, both general and specific, which does have a role to play in your case; the seriousness of the offending; denunciation; and punishment.
Balancing all of those matters as best I can, you are, in relation to the charge of murder, convicted and sentenced to be imprisoned for 14 years. I direct that you are to serve a minimum of 10 years and six months before becoming eligible for parole. Whilst some may see this as a lenient sentence, it is, in my view, in light of all of the circumstances to which I have referred, the appropriate penalty.
I do wish to stress to William Awu’s family that the sentence imposed upon you is not and is never intended to be a reflection of the worth of William Awu. For every person is priceless and important. It is the love and affection with which they hold him that demonstrates his worth.
I declare that you have served 630 days in pre-sentence detention and such is to be entered into the records of the court.
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