R v Pan
[2021] VSC 703
•29 October 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2019 0206
| THE QUEEN | Crown |
| v | |
| PAGUIR PAN | Accused |
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JUDGE: | Taylor J |
WHERE HELD: | Melbourne |
DATES OF HEARING: | 13 and 14 September 2021 |
DATE OF SENTENCE: | 29 October 2021 |
CASE MAY BE CITED AS: | R v Pan |
MEDIUM NEUTRAL CITATION: | [2021] VSC 703 |
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CRIMINAL LAW – Murder – Deceased shot at point blank range in car park – Denunciation, general deterrence, protection of community – Accused aged 19 – Impact of youth – Significant criminal history – Limited remorse – Current prospects for rehabilitation guarded – Standard sentence – Interests of justice served by shorter non-parole period – Sentence of 24 years’ imprisonment with non-parole period of 16 years.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr M Fisher | Office of Public Prosecutions |
| For the Accused | Dr M Gumbleton | Milides Lawyers |
HER HONOUR:
Paguir Pan, you have pleaded guilty to the murder of Winis Atem Apet on 10 March 2019.
The maximum penalty for murder is life imprisonment.
Summary of offending
On the evening of 10 March 2019 you and Mr Apet were with five other friends at a house in Dandenong. You were all consuming alcohol. You also consumed ‘ice’ and Xanax. At some stage the group decided to go to the Asmara Café in Springvale and drove there in a number of cars. You, Mr Apet and Mr Deng travelled in Mr Apet’s car, picking up a young woman en route. You arrived at about 11.03pm and parked in a side laneway. Your group of four then socialised with the others, both in the café and outside in the carpark and laneway.
At about 11.10pm Mr Mijak, one of your friends present, heard a scuffle in the carpark and saw you drive away in Mr Apet’s car. Mr Apet told Mr Mijak that you and he had had a play fight in the carpark during which you punched him a couple of times and he hit you back. Mr Apet reported that you did not like that.
Mr Mijak made two short telephone calls to you. You told him to tell Mr Apet to wait for you and that you would return. Mr Apet also used Mr Mijak’s telephone to call you. Another person present heard Mr Apet say ‘bring the car back’, apparently angrily.
By about 11.47pm you had returned to the scene. CCTV footage showed you walking down the rear laneway towards the carpark. You were carrying a blue bag. The hood of your hoodie was over your head. You were wearing a mask. Mr Apet was seated with Mr Mijak and Ms Puok in a vehicle in the side laneway, but then got out and walked to its rear.
You produced a 12 gauge shotgun from the bag and, from about one metre away, pointed it at Mr Apet. He said ‘what are you doing?’. You discharged the gun. Mr Apet was hit in the chest.
Mr Mijak exited the car and saw you holding the gun. He said ‘what the fuck, you just shot Winis’. You said ‘get out of the way’. You ran away along the rear laneway, re-entered Mr Apet’s car and drove away. That car was abandoned by unknown others about a kilometre from your home. You disposed of your mobile telephone and clothing.
Meanwhile, police officers and MICA paramedics arrived at the scene shortly after the shooting. Mr Apet was already unconscious. He was taken by ambulance to the Alfred Hospital. Mr Apet was declared deceased at 12.40am on 11 March 2019.
You were arrested at about 11.13am on 11 March 2019.
The firearm you used to shoot Mr Apet has never been located.
Victim impact statements
I have received and considered four victim impact statements made by members of Mr Apet’s family. They are steeped in the grief of losing – through violence – the youngest child of a loving and tightknit family.
Ms Akec Kuany, the mother of Mr Apet, speaks of her respectful and loving youngest son, whose absence she feels every day. She suffers anxiety and avoids leaving her house. Mr Baba Atem Apet, the older brother of Mr Apet, describes watching his mother struggle, explaining that the relationship between mother and youngest son is culturally significant. He now tries to fill the role of caring for his mother. Mr Baba Apet also speaks of Mr Apet’s generosity and courage and his own feelings of sadness. Ms Rini Apet, Mr Apet’s sister describes her own children missing their dearly loved uncle. She states that he was the glue that kept the family together. Another sister, Ms Rita Apet, now cries every time she looks at a photograph of Mr Apet. She can no longer bear to live in the family home.
These statements are deeply affecting.
Personal background
It is necessary to say something of your personal background.
You are now aged 22 years. You and your three brothers and one sister were born in Australia after your parents arrived in 1997 as refugees from Sudan. The family settled in Melbourne to be near to extended family, who had previously migrated. You have lived all of your life in the family home in Dandenong South. You have had no serious intimate relationships.
Your first language is English. You are fluent in Nuer, the mother tongue of your parents and the language of the family home. You also have basic understanding of and conversational ability in Arabic.
Your parents worked hard and have been excellent role models for their children. Your father has been employed as a security guard. Your mother has worked as a hair-dresser and in aged-care. The whole family attends the St Andrews Presbyterian Church in Clayton. You attended Sunday school throughout your primary school years and then bible studies into the early years of your secondary education.
That education was obtained at your local schools. You attended Dandenong South Primary School. The racial bullying you initially experienced there decreased over time as the number of African students attending the school increased. You then attended Dandenong High School for three years before transferring to Hallam Senior College, which offered a VCAL/VET program. The College also allowed you to play basketball through a sports program. It seems you were an academically average student. You have been assessed as having low-average intelligence. You were suspended on a couple of occasions because of physical altercations with other students.
After completing year 11 you commenced studies at TAFE with a view towards securing an apprenticeship, but you ceased attending after a short time. You then completed a short course to obtain a White Card, necessary to employment on building and construction sites. Under the auspices of a later Youth Attendance Order imposed upon you, you attended but failed a traffic management course.
Your employment history is very limited. You have briefly held casual positions unloading goods containers and in furniture removals.
Your physical health is robust, pain to your back caused by a car accident in 2018 aside. You have no mental health issues.
You began experimenting with cannabis when you were about 16 years of age. You kept this secret from your parents, who vehemently oppose drug use in any form. At the time you left school you were binge drinking and using cannabis, cocaine and ecstasy. You were incarcerated for five months in 2018. Upon your release you first tried heroin and methylamphetamines. That usage increased. In the lead up to this offending you report abusing ‘ice’ and Xanax.
Criminal history
For a young man you have a significant criminal history.
You first received a non-conviction good behaviour bond from the Children’s Court in 2016 while you were still in Year 11. That was relatively minor offending and you complied with the bond.
In early 2017, after you had left school and were unemployed, you committed armed robbery on a jewellery store. An eight month Youth Attendance Order was imposed by the Children’s Court for this and associated criminal damage and driving-related offences. The Director of Public Prosecutions appealed the leniency of that sentence to the County Court.
Whilst that appeal was pending your compliance with the Order was extremely poor. You failed to attend about half of the supervision and community work appointments and most of the appointments with the Youth Health and Rehabilitation Service clinician. Satisfactory attendance with that clinician is a prerequisite for entry to the Adolescent Violence Intervention Program.[1]
[1]Designed to assist young people found guilty of violent offences.
The period of the Youth Attendance Order was increased on the hearing of the appeal in February 2018. Again your compliance with the Order was poor and breach proceedings were brought against you in June 2018.
In the meantime, in March 2018, you were granted bail in relation to other offending. Whilst subject to that bail as well as the Youth Attendance Order, you were arrested for armed robbery. You intend to plead not guilty to those matters and a criminal trial is pending in the County Court.
In August 2018 you were sentenced to five months’ detention in a youth facility. The following month you were sentenced to four months’ detention for the breach of the Youth Attendance Order, to be served concurrently with the five month sentence. You were released on 10 December 2018, but still subject to bail conditions relating to the armed robbery charge.
It is alleged that on the day of your release you broke into two cars and stole items from each. It is further alleged that whilst on remand on 13 January 2021 you assaulted a prison officer during a dispute over access to the prison phone. You intend to plead not guilty to those charges and the matters are pending in the Magistrates’ Court.
On 21 March 2019, whilst on remand for this offending, you were sentenced to three months’ imprisonment in the Magistrates’ Court for obtaining property by deception.
Analysis
The gravity of your offending is extremely high.
The following factors are relevant to that characterisation. First, you shot Mr Apet at close range in a public place with other people close by. Second, your actions were deliberate and sustained. Following a minor physical scuffle with Mr Apet, you left the scene to obtain the shotgun and returned nearly 40 minutes later determined to use it. Whatever anger you felt at Mr Apet hitting you back during the play fight, you had more than sufficient time to regain control of your temper and reassess your plan. Third, you attempted to disguise yourself by wearing a mask and pulling up your hood. Fourth, you concealed the firearm in a bag until the last moment. Fifth, after discharging the firearm, you immediately left the scene, rendering no assistance to your victim. Those actions were both cowardly and callous. Sixth, you disposed of the car, your mobile telephone and clothing as well as the firearm. Seventh, you were heavily intoxicated with a combination of alcohol, ice and Xanax. Eighth, you were on bail for armed robbery.
The motive for you killing Mr Apet is also relevant to the gravity of your offending. Mr Apet was your childhood friend. You each spent significant time with the other’s family and were like brothers. A dispute had arisen between you and another friend as a result of Mr Apet co-operating with law enforcement authorities. You have in the past expressed certain views about those whom you consider to be ‘dogs’ or ‘rats’. Mr Apet informed against your mutual friend and denied to you that he had done so. You considered Mr Apet to be a ‘dog’ and a liar. You were angry and felt disrespected by him. You considered that Mr Apet should financially compensate your friend or face a physical beating.
While ultimately the prosecution did not press the submission that the sole motive for your actions was retribution for Mr Apet’s co-operation with law enforcement authorities, I am of the view, as conceded by your counsel, that the fact he had done so, that you were angry about both it and his initial denial of it, together with your views about ‘dogs’ all contributed to your decision to shoot him. But for that background, it is inconceivable that your anger at his actions during the play fight would have flared and burned at sufficient intensity for you to take his car to obtain a loaded shotgun and return, disguised, to shoot him.
In this regard I note the psychological report of Dr Matthew Barth prepared on your behalf. He is of the opinion that you are an immature young man with an unsophisticated personality and limited capacity to manage conflict. Dr Barth considers that your maladaptive personality traits meet the diagnostic criteria for Antisocial Personality Disorder.
I accept the opinion of Dr Barth. But I do not accept the characterisation of your actions you gave to him. They were not ‘spur of the moment’. Notwithstanding your immaturity and constrained capacity to manage conflict, you left the scene of the initial confrontation to obtain a weapon. You returned to the scene to use it. Further, I do not accept your statement that you had forgiven Mr Apet for informing to authorities prior to the shooting. If you had, your anger resulting from the play fight would have been of a different magnitude. Accordingly, your moral culpability is high.
It follows that principles of denunciation, protection of the community, just punishment and deterrence, both general and specific, must be given appropriate weight. Although your offending is not to be characterised as a revenge killing, the deliberate taking of a life by shooting at point blank range in a public place, motivated by anger and self-entitlement must be met by condign punishment.
Sentencing principles
I take into account your plea of guilty. While it was not made at an early opportunity, it does indicate an acceptance of responsibility by you. It has spared Mr Apet’s family the ordeal of a trial. It is also of significant utilitarian value. That value is greater because your plea was made during a period in which the criminal justice system is under strain due to the COVID-19 pandemic.[2]
[2]Worboyes v The Queen [2021] VSCA 169.
I also take into account your youth. You were 19 years of age at the time of your offending. You are now 22 years old. The sentence I impose upon you gives, to the full extent possible, weight to your rehabilitation and the possibility of you living a meaningful life upon your eventual release.
The assessment of your prospects for rehabilitation is difficult. Your counsel submits that, at the moment, those prospects can only be considered to be guarded. I agree. Two primary factors contribute to that assessment.
First, is the limited evidence of your remorse. Your plea of guilty came late and in the face of an overwhelming prosecution case. Three days prior to the hearing of your plea – and over two years after your offending – you wrote a letter addressed to the Apet family. You read it during the hearing. By virtue of its timing I consider it to be largely self-serving, but note that it acknowledges the pain your actions have caused that family. As I have already noted, I do not consider your statements to Dr Barth to be a frank acceptance of the gravity of your actions, but again acknowledge that you recognise the pain you have caused. I accept the letter of Reverend Michael Jensen of the St Andrews Presbyterian Church Clayton, who has been visiting you since your arrest. He considers that you have expressed genuine regret and sorrow for your actions. I also consider that you have not revealed the location of the firearm to limit the available finding of remorse.
In short I accept that you are sorry for Mr Apet’s death and the hurt this has caused his family and yours. But I consider your remorse to be circumscribed by your unwillingness to accept the full measure of your culpability.
Second, your criminal history indicates that you have struggled to live not only a crime free life, but one absent violence. You committed murder whilst on bail for armed robbery and three months after being released from juvenile detention. Dr Barth’s report indicates that you are assessed as being of a high risk of violent reoffending using the HCR-20 Version 3 assessment tool.
It is to be hoped that your prospects for rehabilitation will not always be so guarded. You will not be a young man when you are released. With appropriate violent offence-specific treatment, substance abuse treatment and vocational training, it may be that you are not an immature man when you re-join the community.
In this regard, there are several positive indicators.
First, you have support in the community. I have received a reference from Mr Tuach Ter Kuoth, the Chairperson of the Nasir Community Association Inc, who speaks highly of your parents and expresses shock at your offending. I have also received a letter from your father, who expresses deep sorrow for the hurt your actions have caused the Apet family and the Sudanese community while simultaneously expressing support for you. And, you have the support of Reverend Jensen. Second, it seems that you have reconnected with your Christian faith. Third, you have remained free of illicit drugs since being in custody. The negative results of ongoing urinalysis were tendered on your behalf. Fourth, you have used your time in custody productively to engage with available education programs. Your education summary report was tendered.
I also take into account the burden imprisonment has had and will continue to have on you. This is your first substantial period of incarceration in adult custody. You have been moved through various prisons. You have spent a significant period in management units and since June 2020 have been subject to very strict conditions. The COVID-19 pandemic has also affected your experience of custody by limiting visits, both personal and by means of audio visual links, restricting the availability of programs and by requiring occasional lockdowns.
I have had regard to current sentencing practices. I have also considered the principle of parsimony.
Standard sentencing scheme
The standard sentence for murder in the circumstances of this case is 25 years.[3] While s 11A of the Sentencing Act 1991 (Act) governs the fixing of a non-parole period for a standard sentence offence by reference to a percentage of the head sentence, a non-parole period of less than that percentage can be fixed if the Court considers that it is in the interests of justice to do so. The circumstances of this case, particularly your youth, your plea of guilty and the length of the head sentence, have led me to conclude that it is in the interests of justice to fix a lower non-parole period.
[3]Crimes Act1958, s 3(2)(b).
Sentence
Mr Pan, would you please stand.
Balancing, as best I am able, the competing considerations laid down in the Act and having regard to the matters I have just discussed, for the offence of murder I sentence you to 24 years’ imprisonment. You must serve a minimum of 16 years before being eligible for parole.
I declare that you have already served 871 days of that sentence by way of pre-sentence detention (not including today).
I am required by s 6AAA of the Act to indicate what sentence I would have imposed but for your plea of guilty. As such, I declare that I would have imposed a total effective sentence of 28 years with a non-parole period of 20 years.
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