R v Majok - [2017] VSC 72

IN THE SUPREME COURT OF VICTORIA

Not restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2015 0087

Between:

THE QUEEN
and
DAVID MAJOK	Accused

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JUDGE:	Croucher J
WHERE HELD:	Melbourne
DATES OF HEARING:	16 December 2016 & 1 February 2017
DATE OF SENTENCE:	27 February 2017
CASE MAY BE CITED AS:	R v Majok
MEDIUM NEUTRAL CITATION:	[2017] VSC 72

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CRIMINAL LAW – Sentence – Reckless conduct endangering life – SM ejected KD, heavily intoxicated, from her premises – Accused, also present, believed KD had behaved violently and inappropriately towards SM, his sister – While crossing busy road nearby, accused punched KD to head, who fell onto roadway – Accused went to footpath but, as he turned back to assist, passing car struck and killed KD – Accused faced two uncompleted trials on manslaughter before matter settled as plea of guilty to reckless conduct endangering life – Prior and subsequent appearances for violence – Failed to comply with community correction order (“CCO”) imposed for other offending – Assessed as unsuitable for further CCO – Plea of guilty – Remorse – Youth – Delay – Reasonable to good prospects of rehabilitation – General deterrence, denunciation, just punishment, community protection and rehabilitation – Parsimony – Sentenced to CCO for 18 months, with conditions, including judicial monitoring – But for plea of guilty, sentence of nine months’ imprisonment plus CCO for 18 months, with same conditions – Sentencing Act 1991 (Vic), ss 5 & 6AAA and Part 3A; Crimes Act 1958 (Vic), s 22.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms S. Flynn	John Cain, Solicitor for Public Prosecutions
For the Accused	Mr D. Dann QC	Melinda Walker

HIS HONOUR:

Overview

Late on the evening of Saturday 10 January 2015, David Majok punched Kuach Deng to the side of the head as they crossed a busy Furlong Road in St Albans. Mr Deng, who was very drunk, immediately dropped and fell onto the road. Mr Majok kept walking. As he reached the footpath, he turned back with the intention of rendering assistance. However, before he could do so, tragically, a car ran over Mr Deng, killing him. The driver was unaware of what had occurred until flagged down some three kilometres away.

The background to this incident is that Mr Deng had just been ejected by Suzie Majok from her nearby flat, in the presence of her brother Mr Majok. Mr Deng and some friends of his from Adelaide had been staying at Ms Majok’s flat for over a week. Ms Majok had complained to police about their behaviour and to her brother about Mr Deng in particular. As a result, Mr Majok believed that Mr Deng had been behaving violently and inappropriately towards his sister, and knew that he had outstayed his welcome. Twice earlier that day, Mr Deng had not left the flat, despite being asked to do so by Mr Majok and despite promising that he would.

Initially, Mr Majok, who was only 20 at the time, was…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Majok

Details

AGLC: R v Majok [2017] VSC 72
Case: [2017] VSC 72
Decision Date: 27 February 2017

CaseChat Overview and Summary

In the matter of R v Majok, the accused, SM, was facing criminal charges related to a violent altercation with his sister, KD. The incident occurred after SM had ejected KD, who was heavily intoxicated, from her premises. The accused believed that KD had behaved violently and inappropriately towards SM. When KD was crossing a busy road nearby, SM punched KD in the head, causing KD to fall onto the roadway. Although SM moved to the footpath, a passing car struck and killed KD as SM turned back to assist. The accused faced two uncompleted trials on charges of manslaughter before the matter settled as a plea of guilty to reckless conduct endangering life.

The legal issues before the court involved the assessment of an appropriate sentence for the offence, taking into account the plea of guilty, the accused's background, and the principles of sentencing. The court had to consider the nature of the offence, the accused's prior and subsequent appearances for violence, his failure to comply with a community correction order imposed for other offending, and the potential for rehabilitation. The court also needed to balance the objectives of general deterrence, denunciation, just punishment, and community protection.

In determining the sentence, the court recognised the accused's plea of guilty, the delay in resolving the matter, and the accused's youth as mitigating factors. However, the court assessed the accused as unsuitable for a further community correction order due to his history of non-compliance. The court concluded that the accused had reasonable to good prospects of rehabilitation. Considering all the circumstances and the objectives of sentencing, the court sentenced the accused to a community correction order for 18 months, with conditions including judicial monitoring. The court noted that but for the plea of guilty, the sentence would have been nine months' imprisonment plus a community correction order for 18 months, with the same conditions. The court relied on the Sentencing Act 1991 (Vic), sections 5 and 6AAA, and Part 3A, as well as the Crimes Act 1958 (Vic), section 22, in reaching its decision.

Orders