R v Nyuon

[2020] ACTSC 171

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v Nyuon

Citation:

[2020] ACTSC 171

Hearing Date:

26 June 2020

DecisionDate:

26 June 2020

Before:

Mossop J

Decision:

See [24]

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – common assault – plea of guilty – mid range objective seriousness – prior criminal history – ­­­­sentence of imprisonment

Legislation Cited:

Crimes Act 1900 (ACT), ss 34, 38(1)(a)

Parties:

The Queen (Crown)

Chol Bol Nyuon (Offender)

Representation:

Counsel

S Saikal-Skea (Crown)

B Morrisroe (Offender)

Solicitors

ACT Director of Public Prosecutions (Crown)

Boxall Legal (Offender)

File Number:

SCC 338 of 2019

MOSSOP J:

Introduction

1. Chol Bol Nyuon, the offender, pleaded guilty to one count of common assault (CC2019/13043) on 25 June 2020.

Facts

1. The facts are agreed and, in summary, are as follows. In the early hours of 2 October 2019 the offender and the victim, who I will refer to as KC, met up.  Shortly before 3:00am they attended a service station in Gungahlin and purchased cigarettes. They subsequently went to a house in Moncrieff where they spent a number of hours. During this time they consumed alcohol.

1. KC had a dental appointment in the city that day, so at approximately 7:30am he and the offender attended Ms Mary Ayuel’s house in Moncrieff. Ms Ayuel is KC’s cousin. KC intended to ask Ms Ayuel to drive him to the city for his appointment, on the basis that he would give her $18 as petrol money.

1. Despite Ms Ayuel being reluctant to allow the two men to enter her house, she let them in and they had a cigarette together. Ms Ayuel then told KC that ‘Clinton’ was in the bedroom. This referred to Mr Clinton Saki, an acquaintance of KC who he had known since approximately 2010 through their partners at the time. Ms Ayuel and the offender then went outside to have a cigarette while KC went to talk to Mr Saki in the bedroom, who was still in bed.

1. Approximately five minutes later KC went into the living room. Mr Saki came into the room and shouted in a loud voice words to the effect “Fuck, fuck, what happened? Someone has stolen my money.”  Mr Saki immediately accused KC of stealing the $450, which he said was for his mother in Africa. He then went and got a knife and threatened to stab KC. Ms Ayuel and the offender stopped Mr Saki from doing so. Mr Saki and Ms Ayuel then undressed KC, however they did not locate the $450. They stole the $18 cash from KC at some point.

1. Mr Saki then proceeded to tie KC up and beat him with electric cables and burn him with a white household iron. The offender and Ms Ayuel were not present while Mr Saki burned KC.

1. The offender attended Liquorland in Amaroo and purchased a bottle of ‘Whispers’ alcohol and a bottle of ‘Passion Pop’. He then attended Coles Amaroo with Ms Ayuel, and then returned to her residence with the alcohol.

1. Ms Ayuel began drinking, and she and Mr Saki engaged in violence against KC. At some point, the offender assaulted KC by punching and kicking him. This makes up the common assault charge.  The Agreed Statement of Facts does not contain any details about the punching and kicking. It does not describe when it occurred during the course of the confinement of the victim. It does not identify which parts of the body were struck.

1. At approximately 2:30pm Mr Saki contacted KC’s sister, who I will refer to as ZC, and told her that KC had stolen $450 and would not tell Mr Saki where he had put it. ZC called her sister, who I will refer to as BC, and asked if she could come and pick her up so that they could collect KC.  The two sisters and another woman drove to Ms Ayuel’s house, arriving shortly before 4:00pm. During their interactions, BC observed the offender to be significantly intoxicated. He smelt strongly of alcohol and fell off the chair he was sitting on.

1. Mr Saki initially would not let KC leave the house until he gave back the money. BC begged Mr Saki and said she would sort it out. They eventually came to an agreement that they would give Mr Saki the money by that evening and KC left in the company of the three women.

1. At no point was the offender party to any agreement to detain KC. KC later told police that “If [Nyuon] wasn’t there, I would have died because he tried to interrupt … the torture …”

Objective seriousness

1. The offending involved punching and kicking KC.  It occurred in a context where others had detained him and seriously abused him. In that context, the offender had been a moderating influence on Mr Saki and Ms Ayuel. However, the Crown correctly points out that the victim of the offending was extremely vulnerable at the time that he was assaulted and that is a significant feature of the offending. The motivation of the offender for joining in the way that he did is not at all clear. I assess the offending as being in the mid range of objective seriousness for the offence of common assault.

1. A victim impact statement was prepared by the victim and read by counsel for the Crown. The most significant feature of the statement is that the victim trusted the offender and felt betrayed by the fact that he had turned on him and had participated in the incident by assaulting him. It is obviously most unfortunate that the offender, who had a common history with the victim, would betray him in the manner that he did. The victim impact statement describes the longer-term consequences of the incident. It must be recognised that as far as the physical acts that occurred on that day and the consequences are concerned, they are largely attributable to the other offenders.

Subjective circumstances

1. The offender was born in 1989 and is currently 30 years old. He is a man of Sudanese background. He was born in that part of Sudan which has subsequently become South Sudan and from 1992 until 2004, that is, between the ages of approximately three and 15, he lived in a refugee camp in Kenya – the Kakuma refugee camp.

1. In 2004, he and his siblings travelled without their parents to Australia as part of a humanitarian program. His 18-year-old sister supported the family when in Australia. He was educated in Australia and has been employed in the construction industry. His mother remains in Kenya where she is an Anglican priest, and his father remains in Sudan where he is a community leader of some sort.

1. The offender has a nine-year-old daughter. He is separated from the mother of the child. He enjoys strong community and family support. The letter from his brother which was tendered indicates that the offender treats people with respect, is slow to offend and quick to forgive. He is described as a man of self-control. This description sits somewhat awkwardly with the offender’s involvement with the offending committed as part of these proceedings, as well as with his criminal history.

Criminal history

1. The offender has a criminal history in the ACT, NSW and Queensland.  In NSW he has convictions for assault occasioning actual bodily harm, common assault and resisting an officer in the execution of the officer’s duty. In the ACT he has convictions for obstructing or resisting a public official, failing to appear, joint commission minor theft and providing a false name or address.

1. He has previously spent time in prison for failing to appear.  He has a previous conviction for assault occasioning actual bodily harm and common assault, for which he was given suspended sentences of 12 months’ imprisonment.

1. His criminal history is not a particularly serious one, but it does limit the leniency which can be extended to him and his previous convictions for assault indicate the need for specific deterrence.

Plea of guilty

1. The joint trial of the offender, Mr Saki and Ms Ayuel commenced on 22 June 2020. At the commencement of the trial, the offender was arraigned on two counts of the indictment dated 29 January 2020. These were:

a) joint commission kidnapping causing grievous bodily harm contrary to s 38(1)(a) of the Crimes Act 1900 (ACT), which carried a maximum penalty of 20 years; and

b) alternatively, joint commission unlawful confinement contrary to s 34 of the Crimes Act, which carried a maximum penalty of 10 years.

1. He also faced two summary charges of common assault (CC2019/13043 and CC2019/13044).   On the fourth day of the trial, after his co-offenders had entered pleas of guilty in satisfaction of the indictment against them, the offender pleaded guilty to one of the common assault charges (CC2019/13043).

1. He had previously offered to plead guilty to this offence at a criminal case conference. In those circumstances it is appropriate that there be a 15% discount on the sentence that would otherwise have been imposed. The offender has been in custody since 6 October 2019, a period of eight months and 20 days, prior to today.

Consideration

1. Having regard to the offender’s criminal history, particularly in relation to offences of assault and the context in which the offending in the present case occurred, I consider that a custodial sentence is appropriate.  The appropriate starting point is, in my view, a sentence of 120 days, or approximately four months’ imprisonment. That is reduced to 102 days on account of the plea of guilty. As to how that should be served, I do not consider that a suspended sentence would be appropriate.  It is relevant to take into account that the offender has spent a significant period in custody on remand.  In those circumstances, a sentence of full-time imprisonment backdated to take into account the period that he has spent in custody is appropriate.

Orders

1. The order of the Court is:

1.     On the charge of common assault (CC2019/13043), the offender is convicted and sentenced to imprisonment for a period of 102 days, commencing on 6 October 2019 and ending on 15 January 2020, a sentence which has been fully served.

I certify that the preceding [24] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop.

Associate:

Date: 9 July 2020