R v Kur
[2021] VSC 501
•17 August 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2020 0084
| THE QUEEN | Crown |
| v | |
| CHOL KUR | Accused |
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JUDGE: | TINNEY J |
WHERE HELD: | Melbourne |
DATES OF HEARING: | 21, 22, 23 June, 2 July & 3 August 2021 |
DATE OF SENTENCE: | 17 August 2021 |
CASE MAY BE CITED AS: | R v Kur |
MEDIUM NEUTRAL CITATION: | [2021] VSC 501 |
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CRIMINAL LAW – Sentence – Robbery carried out by accused and co-offender – Targets were two young people waiting at a bus stop – Accused subject to youth parole at time of crime – Third offender joined in attack upon victims, killing one and seriously injuring the other – Accused originally charged with murder – Long period on remand – Significant criminal history for similar offending – Early offer to plead guilty - Lack of remorse – Youthfulness – Assessed as unsuitable for a community correction order – Sentencing considerations – Proportionality – Protection of community - Sentenced to be imprisoned for 323 days with corresponding declaration as to pre-sentence detention.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr R Gibson QC with Ms S Lenthall | Ms A Hogan, Solicitor for Public Prosecutions |
| For Chol Kur | Mr R Edney | Balmer & Associates |
HIS HONOUR:
Introduction
Chol Kur, you have pleaded guilty to a charge of robbery, and admitted prior convictions. Your robbery was of a young man named Nathanial Hakiwai (‘Nathanial’) and took place in the middle of the day at a bus stop on a busy suburban street in the north-west of Melbourne. While you and your co-offender, AM,[1] were in the process of carrying out your crime, a friend of yours, Joshua Horton (‘Horton’), carried out attacks using a knife upon the younger brother of Nathanial, Maaka, and then upon Nathanial himself. Maaka was killed and Nathanial was seriously injured. You are not responsible for those crimes.
[1]AM was charged as a child and sentenced by me on 2 July 2021. See the published sentence at R v AM [2021] VSC 397.
The maximum penalty for the crime of robbery is imprisonment for 15 years.
Background
Nathanial was aged 18 at the time of the events. His younger brother Maaka was 17, having celebrated his birthday only ten days before his death. They are the two sons of Stirling and Karli Hakiwai. Mr Hakiwai was from New Zealand of Maori background. He moved to Australia in 1999, meeting his eventual wife shortly after his arrival. They have four children together, the younger two being sisters for Nathanial and Maaka named Leilani and Kiripaeahi.
For some years, the family lived on the Gold Coast while Mr Hakiwai worked in various locations on a fly-in fly-out basis. In May 2019, however, he secured new employment in Melbourne. He relocated here in June 2019, and was joined in turn by Maaka and then Nathanial. It was planned that his wife Karli and the two younger children would move to Melbourne to join Stirling and the boys at the conclusion of the 2019 school year. Tragically, because of the criminal actions of Horton, that never occurred.
At the time of these events, Stirling, Nathanial and Maaka were living together at a house in Main Road West, Kings Park. Nathanial and Maaka had each secured employment shortly after moving to Melbourne. As they had only been in Melbourne a short time, they did not know many people. They spent their time working, hanging out together and going to the gym.
You were 19 at the time of your crime and lived in Taylors Hill with your parents and siblings. You and your co-offender, AM, were both friends, or at least, associates, with Horton at the time of these events. Nathanial and Maaka were complete strangers to you.
Events leading up to your crime
Nathanial and Maaka spent the morning of Saturday, 28 September 2019 at home with their father, Stirling. In the early afternoon, Maaka arranged to meet up with his cousin and go to a gym. Nathanial decided to go with him. Just prior to 2.30pm, the brothers left their house and walked the short distance to a bus stop on Main Road West, 50 metres west of the intersection with Oakwood Road which was controlled by a roundabout. They waited for the bus to come. Nathanial was wearing a Philadelphia 76ers cap.
In circumstances the details of which are not necessary to relate here, but which are set out in the Prosecution Opening on Plea (‘the prosecution opening’), on that morning, you and AM, along with Horton, were rear seat passengers in a Toyota RAV4 (‘RAV4’) vehicle being driven by a young female named NW[2] and containing two other young females. The vehicle was driven to a number of locations that day.
[2]Name initialised to protect the identity of NW.
It so happened that a few minutes after the arrival of Nathanial and Maaka at the bus stop in Main Road West, the vehicle in which you were a passenger arrived at the intersection with Main Road West via Oakwood Road and hence, came upon the Hakiwai brothers who were waiting at the bus stop, minding their own business. There was discussion in the car between you and AM about ‘drilling’, that is, robbing the boys, and an agreement was reached between you that you would do this. Horton was not involved in this discussion. The RAV4 entered the roundabout and completed two full circles before exiting west onto Main Road West. During this process, AM directed NW to stop the car so that you and he could go and drill the boys.
The crime
The vehicle came to a stop a short distance to the west of the bus stop. Nathanial observed a male, alleged to be you, put his head out of the rear of the vehicle and yell out, ‘Where are youse going?’ Nathanial replied that they were off to the gym. You got out of the vehicle, followed shortly thereafter by AM, and approached the Hakiwai brothers. You engaged Nathanial in some small talk to disarm him, and then, in reference to the cap being worn by Nathanial, stated, ‘Run me that hat’. Nathanial refused to do so. You lunged forward and grabbed the cap by the peak and removed it from Nathanial’s head. Nathanial grabbed the cap and snatched it back. Nathanial pushed you, and also pushed AM, when he saw you approaching Maaka. Nathanial was then punched by you to the mouth and he was also kicked to the chest. He ended up on the ground. At some point, you were observed by some of the occupants of the car to also fall to the ground. As Nathanial was getting up, he observed Maaka being held in a headlock by AM in a somewhat bent-over position. As Nathanial saw it, Maaka seemed confused about what was happening, but was not resisting and his body language was quite relaxed.
At this point, Horton left the vehicle by the rear drivers’ side door, armed with a large knife. He walked straight over to where Maaka was still being held by AM. He stabbed Maaka once to the abdomen in an upwards motion towards his chest. Maaka exclaimed, ‘What the fuck?’ He tried to run but almost immediately collapsed to the ground.
Nathanial himself tried to run but stopped when he saw his brother fall to the ground. He yelled out for help. Horton then came at him with the knife. Nathanial tried in vain to fend him off, but Horton succeeded in stabbing him to the outer side of his left thigh. Nathanial fell to the ground and tried to defend himself from further attack by kicking out with his legs whilst screaming for help. He managed to get to his feet and Horton stabbed him again to the outside of the thigh, this time thrusting the knife all the way through. He then immediately pulled the knife out of the thigh of Nathanial. Serious injury was inflicted upon Nathanial by the stabs to the thigh, and there was profuse bleeding.
After Nathanial had been stabbed, you went up to him and removed the Philadelphia 76ers cap from his head, hence completing the robbery to which you and AM have both pleaded guilty.[3] The two of you and Horton then ran back to the car, leaving the injured Hakiwai brother bleeding on the ground.
[3]Nathanial was uncertain in his evidence at Horton’s trial whether the cap was removed after the first or second stab to the thigh. He believed it took place after the second stab.
Aftermath of your crimes
You, AM and Horton arrived back at the car and AM told NW to drive away, which she did, at speed, as it happened being followed by a nearby motorist who was able to obtain the registration number of the car. Horton was still in possession of his knife, and you were holding onto the stolen cap. There was a good deal of yelling in the vehicle, and some condemnation of Horton’s actions. AM directed the driver to St Albans. On the way there, you gave the stolen cap to AM. Later the vehicle was driven to Sunshine. You and AM departed the vehicle.
Investigation and arrest
The registration number of the RAV4 quickly led investigators to the father of NW who was the owner of the vehicle. NW was arrested on the evening of 28 September 2019 and provided Horton’s name to the police as the person responsible for the stabbings. She refused to provide the names of any of the other occupants of the car.
Shortly after the offending, you travelled to New South Wales (‘NSW’) in breach of a youth parole order to which you were subject. On 6 October 2019, you were arrested by NSW police on unrelated matters and detained in custody. You remained in custody in NSW until being extradited to Victoria, where you have remained in custody ever since.
Horton was arrested on the afternoon of 8 October 2019. Following his arrest, police spoke again with NW. Now she provided the names of you and AM to the police.
On 16 October 2019, your youth parole order was revoked. A warrant was issued for your arrest.
Sometime in October 2019, police received information that you were in NSW. The warrant to arrest was forwarded to NSW police. On 1 April 2020, Victoria Police received further information about your location. Members of the Homicide Squad travelled to NSW and obtained an order to extradite you to Victoria. You were transported to Victoria while under arrest on 2 April 2020.
You declined to be interviewed following your arrest.
From 4 April 2020 until 29 September 2020, you served a sentence of 179 days as a result of the revocation of the youth parole order.
Chronology of events
You, AM and Horton were all charged with common law murder, statutory murder, intentionally causing serious injury (‘ICSI’), intentionally causing serious injury in circumstances of gross violence, and armed robbery.[4]
[4]Notification of committal for trial dated 30 March 2020.
A committal mention for you, AM and Horton proceeded on 27 April 2020. With the consent of all three of you, the matters were fast-tracked into this Court. Hearings under s 198B of the Criminal Procedure Act 2009 (Vic) proceeded in this Court for four days commencing on 15 June 2020.
At a case conference held on 19 June 2020, you offered to plead guilty to robbery. This offer was rejected by the Crown.
On 2 December 2020, orders were made separating the trials of you and AM from the trial of Horton and an order granting a judge alone trial was made in respect of the two of you.
Horton stood trial in March 2021, and on 30 March 2021, he was found guilty of manslaughter and ICSI.
On 19 April 2021, your matter resolved, the prosecution accepting your offer to plead guilty to robbery in satisfaction of the charges on the indictment.
You and AM pleaded guilty to the charge of robbery when arraigned before Lasry J on 22 April 2021. Before me, you admitted the matters contained in the criminal record filed in the Court.
Personal background and criminal history
You are now aged 21, having been born in South Sudan on 2 April 2000. That country was marred by civil war. Your family left when you were a young child, spending some time in Egypt before arriving in Australia when you were five or six. You are the eldest of nine siblings ranging in age down to an infant child whom you have not yet met as he was born while you were in custody. One of your siblings is deceased. You are the only one in your family to have been in any trouble with the law. You describe a happy childhood and you remain close to your mother and siblings. Your father returned to South Sudan in 2021 and you have had no further contact with him. You completed year 10 at St Albans Secondary College and have engaged in further education since being in custody, having completed the initial stages of your Victorian Certificate of Applied Learning (‘VCAL’) certificate. In your early teenage years, you were very active in sports, particularly soccer and basketball. Until you were 16 you played soccer at a high level with a team which was a feeder team for the Melbourne Knights.
Unfortunately, after you left school you became involved in offending conduct with other disaffected young people. Between April 2018 and April 2019, you accrued a number of convictions for various charges arising from six court appearances. Of particular significance, in 2019, you were ordered to be detained in a youth justice centre (‘YJC’) for serious offending including two charges of robbery, two of affray, intentionally causing injury, false imprisonment, and committing an indictable offences whilst on bail. A number of your prior convictions involved you, in company with others, attacking strangers using or waiting to use public transport.
At the time of your robbery of Nathanial, you were on youth parole in relation to some of that serious offending. In fact, you had only been released from a youth justice centre on youth parole on 9 September 2019, that is, 19 days before the current offending. Several days after the current crime, in breach of your youth parole order and in the knowledge that you were being sought by Victoria Police, you left Victoria. You were detained in NSW in respect of alleged offending there. You spent 179 days in custody, but the charges were not, in the end, proceeded with.
Seriousness of your crime
The prosecution contended that the robbery committed jointly by you and AM was a serious example of that serious crime. The offending was described as brazen, occurring in a suburban street on a Saturday afternoon in full view of the public. Your victims, so it was asserted, were soft targets, being young, unarmed and unsuspecting. They were simply going about their business waiting for a bus to arrive. They were true innocents, so it was submitted, unknown to you. The offending was pre-meditated, in the sense that you and AM openly discussed your plan to carry out a robbery while still in the RAV4. The victims were engaged in small talk to conceal your true intentions. The robbery did not appear to have been financially motivated, but rather, was pursued for the pure gratification of exerting force over others. The two of you acted together, intending to intimidate and instil fear in your young victims. Some physical force was used in the robbery against the two victims. Nathanial was punched to the mouth, causing some bleeding. He was also knocked to the ground by what he described as a ‘flying kick’.[5] As for Maaka, he was held in a sort of headlock.
[5]Trial transcript 120, 140, 322.
It was submitted by the Crown that the robbery was completed in callous circumstances, that is, after the two victims had been stabbed and fallen to the ground, which, to your knowledge, rendered them clearly injured and unable to defend themselves. It was only after Nathanial, your primary victim, had been stabbed seriously to the leg that his cap was removed from him. Although you and AM were not complicit in the stabbings, you took advantage of the situation to carry out your original plan.
It was further submitted by the Crown that although the robbery took place in a relatively short period of time, there was ample opportunity for you to desist. However, you persisted, despite the resistance shown by the victims and despite the obvious escalation of violence perpetrated by Horton.
Mr Edney, on your behalf, challenged the description of the crime as brazen, submitting that your crime was no more brazen than most robberies tend to be. As for the supposed targeting of young victims, Mr Edney submitted that your victims were not elderly or clearly vulnerable people. They were, in fact, close in age to you and AM. Mr Edney further submitted that bearing in mind your age of 19 at the time of these events, your offending was unsophisticated and bore all the hallmarks of developmental immaturity. If not for the fact of the killing of Maaka, your crime could have been dealt with in the Magistrates’ Court, he submitted. Having said all of that, counsel conceded that in light of your criminal history, your crime would be of sufficient seriousness to warrant a term of imprisonment, although no more than the time you have actually spent on remand referable to this matter.
In my view, yours was a serious crime, for many of the reasons noted by the prosecution. Even accepting the qualifications raised by your counsel, the reality is that you and AM selected young and innocent targets for your planned robbery. This was a senseless crime motivated, I believe, by nothing more than your selfish and concerning desire to exercise dominion over two young people you considered to be weaker than you. Your persistence in the crime in the face of the brave resistance of Maaka and Nathanial is troubling. As for your completion of the crime by the snatching of the cap from Nathanial in circumstances where both he and his younger brother had been seriously injured by being stabbed in front of you, that was especially callous and cowardly conduct. You were no more than a bully doing whatever you felt like doing, with no regard for the feelings and welfare of others.
I was told by Mr Edney that you are ashamed of your conduct. So you should be.
Plea of guilty
Mr Edney submitted on your behalf that your early offer to plead guilty was a significant matter in mitigation. The offer should have been accepted when first put, he submitted. Had that occurred, you would have been spared the anxiety, uncertainty and stress of having the charge of statutory murder hanging over your head for a year. Furthermore, a sentencing disposition that would have been well open in the circumstances, namely a period of detention in a youth justice centre, would not have been foreclosed to you by virtue of your having now turned 21 years old.
The prosecution accepted that you are entitled to the notional utilitarian benefit of your early offer to plead guilty. However, it was submitted by Ms Lenthall that there is no evidence beyond your bare plea of guilty of remorse or contrition for your offending. In particular, it was submitted that your conduct after the robbery in which you fled to NSW did not reflect genuine contrition.
I am satisfied that you are entitled to the utilitarian benefit attaching to your early offer to plead guilty. As for the question of whether you are entitled to an additional reduction in sentence for the subjective features of your plea of guilty, including remorse, I will reserve discussion until I have dealt with the contents of a pre-sentence report provided at the request of the Court, and evidence given by the author of the report at a later hearing.
Delay
The long delay which has occurred in the disposition of your case was relied on strongly by your counsel in mitigation.
You have been in custody continuously since 6 October 2019, a period of 681 days up to and including yesterday. Much of that time has been spent in the onerous conditions which have resulted from the steps taken by the authorities to avoid the spread of COVID-19 into the prison system. In addition, for much of the period, the charge of murder was hanging over your head which was a cause of great stress.
Your time in custody comprised 179 days on remand in NSW for matters which never proceeded to prosecution, 179 days of sentence back in Victoria upon the revocation of your youth parole order, and then a further 323 days on remand referable to the current matter.
I have already made mention of the submission of Mr Edney that the delay in your case has had the effect that a youth justice centre disposition that would otherwise have been open and appropriate in your case is no longer available.
I accept that the delay in the disposition of the charge to which you have now pleaded guilty is a significant matter going in mitigation of sentence. I will take it into account accordingly.
Youth
You were 19 years old at the time of your offending. The prosecution conceded that your youthfulness at the time and now is a matter which weighs in your favour. The prosecution submitted, however, that the consideration of your youthfulness must be weighed against the seriousness of your crime, your relevant criminal history, and the repeated opportunities you have been given in the past to address your offending behaviour. The need to prioritise your rehabilitation must be balanced against other sentencing considerations such as general deterrence and protection of the community.
I accept that your young age is a matter which goes quite strongly into the mix in accordance with the authorities, but I do note that the serious criminal history you have accrued for similar offending, the fact that you were on youth parole at the time of this crime, and your unwillingness to make the most of the opportunities extended to you in the past to reform yourself, are matters which temper the mitigatory effect of your youth.
Victim impact statements
Twenty two victim impact statements were filed in Court and tendered in the overall plea hearing concerning you, AM and Horton. The authors of these statements were the parents, siblings and other close relatives of Maaka and Nathanial, and the content of the statements principally covered the devastating impact upon the victims of the loss of Maaka and the serious attack upon Nathanial. I dealt fully with the heartbreaking contents of these statements in the sentence I passed upon Horton.[6]
[6]R v Horton [2021] VSC 396, [42]-[48].
Section 5(2)(daa), (da) and (db) of the Act require me to take into account the impact of your offence on any victim of it, the personal circumstances of any victim of the offence, and any injury, loss or damage resulting directly from the offence.
The central focus of the victim impact statements was the searing loss brought about as a result of the knife attacks upon Maaka and Nathanial, for which attacks, of course, you are not responsible. It may be correct to say that most of the victims of the overall events are not victims of your offending, albeit that in their eyes, you and AM are significantly to blame for the tragedy unleashed by Horton’s conduct. Nathanial Hakiwai, however, undoubtedly was a victim of your crime, as well as of Horton’s crimes. Nathanial described the initial approach of you and AM, when you asked for what he described as his ‘crusty old work hat that was at least two years old at the time’. He described being struck by you and pushed to the ground, and then seeing Maaka standing there wrestling with AM, helplessly. He then described the knife attacks upon first Maaka and then himself. He went on to say:
So I carry scars not only on the outside of my leg, but the inside also. The reason I bring all this up is because this was my reality, I lived this event by first being robbed by the two Africans and the third person involved Horton killing my brother. So basically, they both had parts that caused the death of my brother. You couldn’t have one without the other. Maaka wasn’t even robbed, they only took my hat, so Maaka lost his life for NOTHING!
Nathanial said in his victim impact statement that he blames himself for Maaka’s death. He should not do so. He was an innocent victim of you and AM, and in the end, Horton. He also, clearly, blames you and AM for the overall events. That apportionment of blame in his mind is, if I may say so, entirely understandable. Had you and AM not launched your criminal attack upon Nathanial and his brother, Horton would not have done what he did.
It is clear that the pain and loss experienced by Nathanial as a direct result of the actions of you and AM is indivisible from that flowing from the actions of Horton. The fact is, however, it is apparent from his statement that he has suffered loss from your actions, due in large part to his appreciation of the sheer senselessness of your robbery of him, and the part it played in the truly tragic events of that day.
Some aspects of the other victim statements may point to the same sort of loss flowing directly from your conduct.
Whilst taking care not to hold against you any injury, loss or damage for which you are not directly responsible, I will take into account in sentencing you the impact of your crime on its victims, including your primary victim, Nathanial.
Citizenship status
On 3 August 2021, the Crown served on your counsel, by way of disclosure, a statement dated 19 July 2021 from Ms Amanda Staier, an officer within the Department of Home Affairs (‘DHA’). The statement revealed that you hold a Global Special Humanitarian visa issued to you on 9 May 2005 which permits you to reside in Australia as a permanent resident. The statement reads, in part:
In accordance with Departmental Policy, a person’s visa must be cancelled if they are serving a full-time term of imprisonment for an offence committed in Australia and they have, at any time, been sentenced to a period of 12 months or more. If a non-citizen’s visa is cancelled in these circumstances, the person may apply to the Minister for revocation of the visa cancellation decision within 28 days after being taken to have received the notice.[7]
[7]Statement of Ms Staier [11].
The statement indicated that the DHA is currently assessing whether your visa should be cancelled. The matter is yet to be decided.
I granted leave to Mr Edney and the Crown to address this issue by way of further written submissions.
Mr Edney submitted that the risk of deportation should you be sentenced to a term of imprisonment of 12 months or more is clear, and that the risk of deportation which you face should be regarded as a significant matter in mitigation.
The Crown, by way of written submissions, outlined some of the authorities on the matter of the relevance of the prospect of deportation on sentence. The Crown submitted that the Court should not speculate that if you are sentenced to 12 months’ imprisonment you will be deported, but because the prospect may weigh heavily on your mind, it is a relevant matter to take into account. It was submitted, however, that I should not fashion a sentence to avoid the possibility of executive action. The potential for deportation should not ‘control or dictate the sentencing outcome’.
In Loftus v The Queen,[8] the Court of Appeal, in discussing the relevant principles, indicated the two ways in which the potential for an offender to be deported at the end of a sentence may be relevant to sentencing, the first of them being that the prospect of deportation renders the imprisonment more onerous because the prisoner will face the prospect of deportation. In assessing the chance of deportation, it will be relevant to consider whether the sentence imposed would trigger a discretion or a duty to cancel the visa held by the offender. The Court went on to state, however:
Although the potential that an offender may be deported following sentence is a relevant consideration in sentencing in the way explained above, that potential cannot control or dictate the sentencing outcome. It would be an error for the sentencing judge to impose a sentence, that would otherwise be inappropriate, for the purpose of avoiding the operation of the Migration Act.[9]
[8][2019] VSCA 24.
[9]Ibid [81].
Ultimate submissions on your behalf
When before the Court on 23 June 2021, Mr Edney submitted that there were a number of mitigating features as set out in his written outline. In spite of these, he conceded that a term of imprisonment would be warranted given your prior convictions, but submitted that even the 266 days of custody specifically referable to the current crime,[10] not to mention the other periods you have spent in custody since your arrest, would constitute sufficient punishment. It would be inappropriate for you to be ordered to serve any further period in custody. He also submitted that a community correction order (‘CCO’), with or without a term of imprisonment, would be an appropriate disposition. Indeed, he submitted that such an order may be of assistance to you in achieving your reintegration back into the community.
[10]As was then the figure, having since grown to 323 days.
In light of these submissions, and bearing in mind that the prosecution did not speak against the appropriateness of a CCO in combination with a term of imprisonment, I determined that it would be appropriate to request a report assessing your suitability for a CCO. Having requested the report, I adjourned sentence to 2 July 2021.
On the morning of 2 July 2021, a CCO Brief Pre-sentence Assessment Outcome Report dated 1 July 2021[11] and prepared by Ms Jessica Johncock was provided to the Court. Earlier oral confirmation of the negative outcome of the assessment had been provided to the Court the previous evening, and in turn was passed on to the parties. When the plea in mitigation recommenced on 2 July 2021, Mr Edney indicated that you disputed the correctness of many of the things attributed to you in the report. In the upshot, it was decided that it would be appropriate for the author of the report to give evidence and be cross-examined by your counsel. The further hearing of the plea was adjourned, and the plea in the end came before the Court again on 3 August 2021, on which occasion, Ms Johncock gave sworn evidence.
[11]Exhibit J.
Before I turn to that evidence, I should say something of the contents of the report. The report indicated that you had been found to be ‘unsuitable’ for a CCO largely based on your presentation during the assessment. The author had spoken with you for approximately 30 minutes via videolink. She stated that your presentation was superficial, and that you made little attempt to use the assessment as an opportunity to express your motivation to consider rehabilitative pathways. Ms Johncock noted that you had been found unsuitable following three earlier assessments for CCOs. She indicated that you demonstrated little insight into your offending behaviour. You told her that you were ‘over’ this matter and wanted to move on. When she explored this, enquiring whether you may have been remorseful, she said that you stated, ‘No, I am not remorseful, I just am sick of talking about it’. Further prodding by the author was unable to elicit any response from you indicative of remorse. According to the report, you told Ms Johncock that you went to NSW because, ‘I had a trip planned, so I just went anyway’. She considered, ‘This reinforced his high level of disregard for authority and his lack of remorse and accountability for the severity of the crime’. She went on to say:
At no point did Mr Kur demonstrate empathy or remorse regarding the pain he has caused the victims, family and the wider community. Mr Kur did not make any attempt to use the assessment as an opportunity to demonstrate a motivation to change his behaviour, suggesting that his time in custody has not acted as a deterrent to his entrenched attitudes.
Ms Johncock stated that you reported a liking for fighting and violence, and denied any intention to cease contact with your co-offenders and other pro-criminal associates. You indicated no motivation to address your pro-criminal attitudes. You advised Ms Johncock that you intend to maintain contact with your pro-criminal associates and to engage in criminal activity if opportunities present themselves.
In light of the above, Ms Johncock considered it to be evident that a CCO would not be a deterrent or aid in reducing your risk of recidivism.
As already indicated, Ms Johncock gave evidence before me on 3 August 2021. She was challenged by Mr Edney as to the accuracy of the direct quotes attributed to you in the report. It was put to her that she was mistaken about, or had misinterpreted, what you said. She refuted that contention, maintaining that she had a clear recollection of the notable things said by you at the time she commenced to compile her statement shortly after the interview.
As I indicated to Mr Edney briefly on that day, I was satisfied that you did say the things attributed to you by Ms Johncock. I could find no reason not to act on the evidence of Ms Johncock, and the contents of her report.
In further written submissions filed after the Court had heard the evidence of Ms Johncock and indicated the decision on that material, Mr Edney submitted that the fact that you had been assessed as unsuitable for a CCO does not mean that any punishment imposed should be increased or that the protection of the community should become a sentencing objective. As he put it, the ‘normal’ application of the proportionality principle remains intact. He submitted that in light of your young age and the time you have already spent in custody, including on this matter, the punitive ends of the sentencing process have been achieved, and you have been punished sufficiently. You should be released immediately, he submitted, albeit that that would be without any supervision.
The position of the Crown
The position of the Crown at the time of the filing of the first outline of submissions was that a custodial sentence would be the only appropriate disposition for you, but that a combination of imprisonment with a CCO would be open. Having heard all of the submissions advanced on your behalf at the first plea hearing on 23 July 2021, Ms Lenthall conceded that a CCO combined with a term of imprisonment with no additional time to actually be served would be a sentence within the appropriate range for you.
In a combination of oral submissions made by Mr Gibson on 2 July 2021 and written submissions filed after the further hearing of the plea on 3 August 2021, the Crown submitted that the statements you made to Ms Johncock which were set out in her report indicated a callous attitude towards the offending, an absence of remorse, little or no insight or empathy as to the impact of your criminal activity, and a pro-criminal attitude that reflects adversely upon your prospects for rehabilitation. The statements also highlighted the need for community protection.
It was submitted by the Crown that in ordering the CCO assessment, the Court ‘had clearly in contemplation a sentencing order above and beyond time already served’[12] by you. Had a CCO been part of the sentence, it would have had a punitive aspect to it.
[12]Outline of submissions [5].
The Crown reiterated its earlier submissions concerning the seriousness of your offending, the impact on the victims, your extensive criminal history involving similar violent offending, the fact your crime was committed soon after your release on parole for like offending, and your failure to be deterred by past court orders. The Crown maintained its position that protection of the community and specific and general deterrence remain important sentencing considerations.
On 2 July 2021, following the receipt of the report assessing you as unsuitable for a CCO, the Crown in a submission which was not specifically repeated in later oral or written submissions, asserted that a sentence reflecting only the time you had already served would not suffice.
Parity
The question of parity was not specifically addressed by Mr Edney during the plea hearing. It was addressed by Mr Marsh, for AM, who, to my mind, correctly submitted that in light of the different regimes under which AM and you fell to be sentenced, disparate sentences should be passed upon you and AM. Ms Lenthall did not take issue with that proposition. In the end, having considered the sentence I imposed upon AM and all its circumstances, I consider it appropriate to impose a sentence upon you that is substantially more punitive than that I imposed upon AM. You were older than AM, had more serious prior convictions, were on youth parole at the time of the offending, and, as noted, do not fall to be sentenced under the same sentencing regime. The position of the two of you, despite its similarities, is really quite different.
Remorse
Having considered all of the available material and heard the submissions made on your behalf, even before I had seen the contents of the report of Ms Johncock and heard her evidence, I had formed the view that there was no evidence of your being remorseful for your crime. That impression was powerfully supported by the report and evidence of Ms Johncock. I am satisfied that, even to this day, you hold onto a callous disregard for the fate of the two young people you targeted in your crime and feel no remorse at all for your actions.
As I said earlier, you are entitled to a reduction in sentence for the utilitarian benefit of your plea of guilty. You are not entitled to a further reduction for the subjective features of your plea of guilty, including remorse.
Important sentencing purposes
All of the sentencing purposes set out in s 5(1) of the Act have application. The sentence I will pass upon you is aimed to justly punish you for your crime, to deter you from further offending, to deter others who may be minded to engage in such gratuitous and mindless violence in future from that course, to manifest the denunciation by the Court of your conduct, and to protect the community from you.
As for the matter of rehabilitation, sadly, I think your prospects in this regard are poor. That does not mean that such hopes are extinguished. You are a very young man, and there is time for you to turn your life around. It is to be hoped that you may be able to do so. This will not occur unless you are prepared to properly accept responsibility for what you have done, let go of your seeming contempt for authority and the law, and take steps to try to make something worthwhile out of your life.
Returning briefly to the matter of community protection, that is an important consideration, but there is a limit to the extent to which a sentence that I can appropriately pass upon you will further this purpose. As was said recently by the Court of Appeal in Stevens v The Queen,[13] ‘Community protection through incapacitation of an offender can only operate within the confines of the principle of proportionality’.[14]You have already spent a substantial period of time in custody, both here and in NSW. It is not legitimately open to me in sentencing you to impose a term of imprisonment beyond that which is proportionate to the seriousness of your offending in all of the circumstances in order to protect the community from you.
[13][2021] VSCA 218 (Priest and Kennedy JJA).
[14]Ibid [40]. See also Veen v The Queen [No 2] 1988 164 CLR 465.
Conclusion
You should be under no illusions. Your robbery of Nathanial Hakiwai was a senseless, cowardly and callous crime. You were no more than a bully who obtained gratification from targeting innocent, decent young people for your own selfish gratification. Your actions during the event and afterwards bespeak a lack of normal human decency and respect for others. Even now, as I come to sentence you almost two years after the events, and with all that you have gone through in the interim, I am moved to note, again, that there is no evidence that you are remorseful for what you did. That is unfortunate and very concerning.
By virtue of the time you have spent on remand, you have been significantly punished for your conduct. I will make a declaration in respect of a period of time you have spent in custody referable to this offending. As for time you spent on remand in NSW, that is dead time, and I will take it into account in accordance with the principles in R vRenzella[15] and the cases which have followed it. As for the time you spent in custody serving the unexpired portion of your parole, I will take that into account in a general sense in accordance with the totality principle.
[15](1997) 2 VR 88, 96-97 (Winneke P, Charles and Callaway JJA).
I give appropriate weight to your citizenship status and the risk of deportation.
Sentence
Chol Kur, for the robbery of Nathanial Hakiwai, you are sentenced to be imprisoned for a period of 323 days.
I declare a period of 323 days up to and including yesterday, 16 August 2021, as being a period already served under this sentence. I direct that the fact of the making of that declaration and its details be noted in the records of the Court.
I indicate pursuant to s 6AAA of the Sentencing Act 1991 that, but for your plea of guilty, I would have imposed a sentence of 16 months’ imprisonment with a non-parole period of 10 months.
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