R v Saki
[2020] ACTSC 270
•7 October 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Saki |
Citation: | [2020] ACTSC 270 |
Hearing Date: | 6 October 2020 |
DecisionDate: | 7 October 2020 |
Before: | Mossop J |
Decision: | See [52] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – unlawful confinement – possession of cannabis – plea of guilty during trial – above mid range of objective seriousness – good prospects of rehabilitation – limited criminal history – risk of deportation – sentence of imprisonment |
Legislation Cited: | Crimes Act 1900 (ACT), ss 34, 38 Crimes (Sentencing) Act 2005 (ACT), ss 7, 35 Drugs of Dependence Act 1989 (ACT), s 171(1)(a) |
Cases Cited: | R v Ayuel [2020] ACTSC 213 R v Butters [2019] ACTSC 143 R v Nyuon [2020] ACTSC 171 |
Parties: | The Queen (Crown) Clinton Saki (Offender) |
Representation: | Counsel S Saikal-Skea (Crown) K Archer (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) McKenna Taylor (Offender) | |
File Numbers: | SCC 344 of 2019 SCC 345 of 2019 |
MOSSOP J:
Introduction
Clinton Saki, the offender, has pleaded guilty to one count of detaining a person, with intent to hold him for ransom or for any other advantage to any person and that person suffered grievous bodily harm while being detained (CC2019/10834). This is contrary to s 38(a) of the Crimes Act 1900 (ACT), by virtue of s 45A of the Criminal Code 2002 (ACT). The maximum penalty is 20 years’ imprisonment.
The offender has also pleaded guilty to a transfer charge of possessing a prohibited substance, namely cannabis (CC2019/10833), contrary to s 171(1)(a) of the Drugs of Dependence Act 1989 (ACT). The maximum penalty is a fine of $160.
He has two co-offenders, Mr Chol Bol Nyuon and Ms Mary Ayuel. Mr Nyuon was sentenced by me on 26 June 2020: R v Nyuon [2020] ACTSC 171. Ms Ayuel was sentenced by me on 6 August 2020: R v Ayuel [2020] ACTSC 213.
Facts
The facts were agreed and are set out in the Statement of Facts which was tendered. It should be noted that the agreed facts differ in some respects from those which provided the basis for sentencing in Mr Nyuon and Ms Ayuel’s cases. In summary, the agreed facts are as follows.
In the early hours of 2 October 2019 Mr Nyuon and the victim 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.
The victim had a dentist appointment in the city that day, so at approximately 7:30am he and Mr Nyuon attended Ms Ayuel’s house in Moncrieff. Ms Ayuel is the victim’s cousin. The victim 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.
Despite Ms Ayuel being reluctant to allow the two men to enter her house, she let them in and they had a cigarette together. She then told the victim that ‘Clinton’ was in the bedroom. This referred to the offender, an acquaintance of the victim who he had known since approximately 2010 through their partners at the time. Ms Ayuel and Mr Nyuon then went outside to have a cigarette while the victim went to talk to the offender in the bedroom. The offender was still in bed.
Approximately five minutes later the victim went into the living room. The offender came into the room and shouted in a loud voice “Fuck, fuck what happened? Someone has stolen my money”. He immediately pointed his finger at the victim and accused the victim of stealing $450, which he said was for his mother in Africa. The offender then went and got a knife and threatened to stab the victim. Ms Ayuel and Mr Nyuon stopped the offender from doing so, and instead suggested that they strip the victim to search him for the money. They undressed the victim, however, they did not locate the $450. The $18 in cash was stolen from the victim at some point.
The offender insisted the victim stole the money, saying words to the effect “I’ve known Chol for a very long time, he cannot steal from me. I live with [Ms Ayuel], she cannot steal from me. So who else do you think could’ve stolen the money? It must be you”. The victim repeatedly denied that he stole the money.
The offender then proceeded to tie the victim’s hands up behind his back with a white cable. He threatened the victim, saying “are you going to tell me where you put my money? Otherwise I’m going to kill you. You’ll be hung upside down in the garage, you’ll die today.” He then started beating the victim with electric cables and burning him with a white household iron. The offender took a number of cables and twisted them together to make one long cable which he used to beat the victim. Ms Ayuel and Mr Nyuon were present while the offender burned the victim.
Throughout this incident the offender inflicted a number of burns on the victim using the household iron, including on his arm, buttocks, leg and chest. He also held a lighter to the victim’s face and said words to the effect “I’m going to burn your face if you don’t produce my money”. He burned the victim’s hair with the lighter and, at some point, punched the victim in the mouth.
At some stage during the morning, while the victim was being detained, Ms Ayuel and Mr Nyuon left the house and took the victim’s $18 with them. They purchased alcohol. When they returned to the house Ms Ayuel began to drink and she threatened the victim with a knife and assaulted him. When she threatened to stab the victim the offender said “we’re not going to kill him this way, kill him in slow motion”.
At one point the victim was lying on the bed and Ms Ayuel used an electric cable to strangle him. At the time the offender was also punching him and beating him with a cable. The victim believes he lost consciousness due to being strangled. The offender and Mr Nyuon were present while Ms Ayuel strangled the victim.
Throughout the entirety of the victim’s confinement, the offender made a number of threats to him, including that he would “call the bikies”, cut the victim’s leg off, and that, because the victim was a “pussy”, he would “cut off [his] dick”.
Eventually the victim told the offender that he would pay the money, even though he did not take it, so that they would stop hurting him. After initially refusing to contact the victim’s family, at approximately 2:30pm, the offender contacted the victim’s sister, who I will refer to as ZC, and told her that the victim had stolen $450 and would not tell the offender where he had put it. The offender asked ZC for the money and said “you need to come and talk to him before I lose my temper”. 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 the victim. The two sisters and another woman, who I will refer to as FH, drove to Ms Ayuel’s house shortly before 4:00pm.
When the women arrived, the offender was in his bedroom and the victim was on the floor of the balcony. The victim told BC that he had been tied up, burned, whipped and choked over the money, which he was adamant that he did not take. FH spoke with the offender who said that the victim could not leave until he returned the money. He made admissions to tying the victim down and burning him with an iron on his hand but said that the victim did the remainder of the burns to himself.
Eventually, an agreement was reached between the victim, his sisters and the offender which led to the victim being allowed to leave the premises.
Later that evening ZC called the offender, who repeated that he only burned the victim on the arm and did not know about the other burns.
A search warrant was executed at Ms Ayuel’s house on 4 October 2019. Police seized a sandwich size clip seal bag containing green vegetable matter, believed to be cannabis. It was located on the dressing table and the offender admitted it belonged to him. The seized cannabis weighed 38 grams.
The expert reports from Dr Russell Thomas, medical practitioner, dated 29 November 2019 and 19 June 2020 indicate that the victim sustained “a combination of superficial partial thickness and mid partial thickness dermal burns to his left arm, left buttock, left leg and the right side of his chest”. He said the burn injuries sustained will likely result in skin pigmentation changes and permanent scarring. In addition to the burns, the victim also suffered tenderness of the left anterior chest, spine, left upper quadrant of the abdomen, both ankles and wrists; swelling to both hands; redness and possible swelling of the visible lateral left lower leg; skin discolouration of the neck and both legs; and deformity of the left hand. Dr Thomas reported that the victim will have permanent and long-lasting sequalae from his injuries, including scarring and skin pigment changes and the possibility of ongoing pain and discomfort and ongoing psychological sequelae.
Objective seriousness
The victim was detained for approximately eight and a half hours. The unlawful confinement was not premeditated or planned. The purpose of the confinement was to extract money that the offender alleged had been stolen from him. The unlawful confinement was affected using violence, threats and physical restraint. The conditions under which the victim was confined were violent and degrading. He was stripped naked, his hands were tied behind his back with an electric cable and threats were made to his life. He was assaulted using the cigarette lighter, cables and the domestic iron. The injuries sustained included significant burns to his body. While the injuries were serious, they were not at the upper end of the range of grievous bodily harm. The offending was obviously significantly more serious than that of Ms Ayuel, who was charged under s 34 rather than s 38 of the Crimes Act. Overall, the offending is above the mid range of objective seriousness for this offence.
Victim impact statement
The victim provided a victim impact statement to the court, which was read aloud by the prosecutor. He described the lasting impact that the offence has had on him, saying that it had left him “completely traumatised”. He often relives the day of the offence which causes him to shake and feel sick. It has affected his ability to move freely as he feels uncomfortable using public transport and has difficulty trusting people. He reflected on the psychological impact that the offence has had, noting that it has impacted upon his relationships with his family and friends, and has impacted upon his work performance. He now feels depressed, stressed, anxious and, at times, has suicidal thoughts. He no longer feels safe in any environment and described his poor mental health as being debilitating. He noted that his “willpower, religion and beliefs” have assisted in getting him through each day.
Such impacts are not unexpected consequences of offending involving deprivation of liberty and grievous bodily harm of the nature involved in this case.
Subjective circumstances
The subjective circumstances of the offender are described in a pre-sentence report prepared by ACT Community Corrections dated 1 October 2020. Service records reflect generally positive and respectful behaviour by the offender whilst remanded in custody, and noted he was especially helpful in providing assistance to another detainee of Sudanese background.
He is currently 27 years old. He was born in South Sudan, where his father was a militia soldier. His mother abandoned the family when he was an infant. Counsel for the offender indicated, consistent with the circumstances of the offending, that he had reestablished contact with his mother in the year prior to his offending. He advised the author of the pre-sentence report that he had moved to a refugee camp in Egypt with his father and younger brother when he was six years old. He said he “saw some things” in Sudan and Egypt and acknowledged that he continues to experience trauma related issues from things he witnessed as a child.
He suffered a disability as a child, forcing him to use crutches from a young age. He was hospitalised for several months and received treatment for this disability. In 2006 he moved to Australia with his father, brother and stepmother, and noted that his life improved from this time. They initially resided in Sydney and then moved to Canberra in 2011. His family now reside in Queensland and the offender spoke of his desire to move there at some point to assist his ageing father. He speaks to his father frequently and they maintain a strong and supportive relationship.
He advised that he has been in an “off and on relationship” for the past nine years with his partner, who he met in the Egyptian refugee camp. His partner told the author of the pre-sentence report that they were separated at the time of the offence but have since resumed their relationship while the offender has been in custody. She maintained her support for him and said she will provide accommodation for him when he is released from custody.
Prior to being remanded in custody the offender resided with a friend. He was unable to maintain his rental payments and was evicted about three weeks prior to these offences. At the time of the offences he was residing with Ms Ayuel. Upon release he intends to reside with his partner, who confirmed that she has recently obtained rental accommodation and is prepared to have the offender live with her.
The offender completed his Year 10 Certificate. He left school halfway through Year 11 to pursue employment. He began a Diploma of Sound Engineering at the Canberra Institute of Technology in 2019 but his enrolment was cancelled due to non‑payment of fees. He explained that he had believed his studies would be subsided by Centrelink.
He advised that for most of his adulthood he has been employed, in hospitality and the construction industry. Prior to being arrested for these offences he was working for a business his friend owned and has spoken to this previous employer and confirmed that the job will be available upon his release. His partner verified that information. He has maintained employment whilst detained at the Alexander Maconochie Centre for the majority of the time in a cleaning capacity. He stated to the author of the pre-sentence report that he makes music and has made some financial gain as a result of music sales. He said he had savings of a few hundred dollars and no debts. He acknowledged the issues that his lack of finances had caused in the past and said this was a contributing factor to the commission of the offences.
He reported a mix of antisocial and prosocial friends and acquaintances. He noted that some of his friends, particularly those he was associating with at the time of the offences, used illicit substances or were involved with the criminal justice system. He advised that he intended to stay away from negative influences in his life when released and would maintain the positive relationships that he forged through making music.
He consumed alcohol and cannabis but did not view his use as problematic. He advised that he has never used any other illicit substances and was not intoxicated at the time of the offending. He was, however, hungover on the day of the offence and that contributed to the low mood that he was experiencing at the time.
The offender said his primary source of entertainment was listening to and making music. He has a website to which he uploads the music he makes and it is available for purchase. He has made nearly $10,000 from his music sales in the past several years. The author of the pre-sentence report noted that the offender’s engagement with making music appears to be a strong protective factor, with him describing a desire to return to studying music in the future.
Despite acknowledging the trauma he suffered in his youth, the offender stated he had never discussed these issues with anyone outside his immediate family and had never been diagnosed with a mental illness. He believed he would benefit from engaging with counselling to address these issues. He described his behaviour on the day of the offending as “very out of character”.
He said that he disagreed with much of the contents of the police Statement of Facts and believed that much of the victim’s statement was fabricated. He said the timeline was incorrect and the events took place in a much shorter timeframe. Notwithstanding that the pre-sentence report includes this statement, counsel for the offender made it clear that the offender agreed that the Statement of Facts was the appropriate basis upon which to sentence him. The author of the pre-sentence report indicated that the offender minimised some of his actions but acknowledged that he felt angry at the victim due to his belief that he had stolen his money. He acknowledged that he overreacted and feels remorseful for his actions. He would like to apologise to the victim.
The author of the pre-sentence report assessed the offender as being a medium to low risk of general reoffending, with his primary risk factors being his mental health, alcohol and cannabis use and financial problems. He was assessed as suitable for a good behaviour order and a community service work condition.
Criminal history
He has a limited criminal history and has never previously been subject to a custodial sentence. I do not consider that the offending for which he was subject to a sentence imposed in May 2014 to be significant because of the age of the offender at the time of the offending and the modest penalty imposed.
Plea of guilty
The joint trial of the offender, Ms Ayuel and Mr Nyuon commenced on 22 June 2020. At the commencement of the trial, he was arraigned on five counts of an indictment dated 29 January 2020. This was the count that he subsequently pleaded guilty to, as well as one count of unlawful confinement, one count of intentionally inflicting grievous bodily harm, one count of inflicting actual bodily harm and one count of choking, suffocating or strangling. The plea of guilty to the charge for which he is being sentenced was accepted in full satisfaction of the indictment.
The plea was a late one but still had some utilitarian value and I will allow a discount of approximately 5% pursuant to s 35 of the Crimes (Sentencing) Act 2005 (ACT).
Time in custody
The offender has been in custody since 4 October 2019. I will take this period into account by backdating the custodial sentence that I impose.
Co-offenders
Mr Nyuon pleaded guilty to a single count of common assault. The starting point for his sentence was 120 days or approximately four months’ imprisonment. He was entitled to a 15% discount, having earlier offered to plead guilty to the common assault charge. Therefore, the sentence was 102 days’ imprisonment.
Ms Ayuel pleaded guilty to one count of unlawfully confining another person and one count of choking, suffocating or strangling a person. She was afforded a 5% discount for her plea of guilty. The sentence was 28 months’ imprisonment, to be suspended after 10 months upon the offender entering into a good behaviour order.
Clearly the offending by Mr Nyuon and Ms Ayuel was substantially less serious than that of the offender. That is reflected in the charges to which they pleaded guilty and the resulting sentences.
Consideration
The offending in this case was very serious. The circumstances are unusual and the offending does not fit into any understandable pattern of facts. The reason for such serious offending by the offender, in response to what he identified at the time as the issue with the victim, remains unclear. Counsel for the offender indicated that the offender sincerely believed at the time that money had been stolen. However, the offender accepted that his conduct was a “grotesque overreaction” for which there was no justification. The offending does not appear to reflect any antisocial pattern of behaviour but rather is a dreadful, largely unexplained, one-off event.
I have taken into account the disrupted upbringing of the offender and his limited criminal history. There was some reference by counsel for the offender to him having suffered injuries during an attack in the war in Sudan and the possibility that there may be unresolved issues arising from his background that could provide some explanation for his conduct. No details were provided, other than that he suffered injuries to his spine, leg and arm. Although I have taken into account his disrupted upbringing, which was the product of the civil war in a general way, it is not possible on the material before me to draw any particular link between his psychological make-up as a result of that background and the aberrant offending conduct for which he is to be sentenced.
The offender appears to have better than reasonable prospects of rehabilitation. He has otherwise remained employed in his adult life and appears to have pursued his interest in music with some diligence.
The court was informed that the offender was not a citizen of Australia and, as a consequence, was at risk of deportation if he was sentenced to more than one year’s imprisonment. The evidence on this issue was limited to correspondence which indicated that the Australian Border Force had referred him to the “Character Assessment and Cancellation Branch” of the Department of Home Affairs to consider the issue of cancellation of his visa and that if he was convicted of a sentence of 12 months or more he would be liable for cancellation based on character concerns. That does little more than state the effect of the relevant legislation. It does not provide an indication of the likely exercise of discretion, either in relation to any cancellation of his visa or any revocation of a visa cancellation decision, and counsel for the offender conceded as much. However, in the light of the legislation (referred to in R v Butters [2019] ACTSC 143 at [100]-[102]) deportation is not merely a speculative possibility. The actual prospects of deportation are, however, on the material before the court, not able to be ascertained. Clearly, it is not open to structure a sentence so as to avoid the operation of migration legislation. Given the limitations on the evidence, I cannot treat the possibility of deportation as a significantly mitigating factor.
In those circumstances, each of the purposes of sentencing under s 7 of the Crimes (Sentencing) Act are relevant. In my view, only a sentence of imprisonment involving a substantial period of full-time detention is appropriate.
The appropriate starting point is a sentence of three years and nine months’ imprisonment, reduced to 42 months and 22 days on account of the plea of guilty.
Given the offender’s limited criminal history and better than reasonable prospects of rehabilitation, I will set a relatively short non-parole period of 24 months. This is approximately 56% of the head sentence. The sentence will be backdated to 4 October 2019 to take into account the time in custody.
On the cannabis charge, the offender will be fined $50 and allowed no time to pay.
Orders
The orders of the Court are:
1. On the charge of contravening s 38 of the Crimes Act 1900 (ACT) (CC2019/10834) the offender is convicted and sentenced to imprisonment for 42 months and 22 days, commencing on 4 October 2019 and ending on 25 April 2023.
2. The non-parole period starts on 4 October 2019 and ends on 3 October 2021.
3. On the charge of contravening s 171 of the Drugs of Dependence Act 1989 (ACT) (CC2019/10833), the offender is convicted and fined $50 and allowed no time to pay.
| I certify that the preceding fifty-two [52] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop. Associate: Date: 9 October 2020 |
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