Akot v The Queen [2020] VSCA 55

2 He pleaded guilty to a single charge of intentionally causing serious injury and two summary offences and was sentenced by a judge of the County Court as follows:[1]

[Crimes Act 1958 s 16]

6AAA Statement: 5 years with a non-parole period of 3 years and 6 months

3 For the reasons that follow, we will receive the fresh evidence. However, in the circumstances of this case and giving that evidence due consideration in the light of all of the material, we have concluded that no different sentence should be imposed.

4 We will grant leave to appeal but dismiss the appeal.

5 At the time of the offending, the applicant was 18 years of age and the victim was 40. They lived in the same neighbourhood and had known one another for around five years; the victim associated with the applicant's brother.

6 On 27 November 2017, the applicant, together with an unknown male, knocked on the front door of the home of the victim. The victim was not home and the applicant and his co-offender drove their car a short distance away and waited for the victim to return.

7 Once the victim returned, the applicant again knocked on the front door and, when the victim opened the door, he walked down the driveway with the applicant. The victim knew that the applicant was angry with him and said that he wanted to talk and to let him know that he had nothing to do with the applicant's brother's drug overdose.

8 In the meantime, the co-offender had hidden himself nearby. As the applicant and the victim walked down the driveway, and without any provocation, the applicant struck the victim to the head with a clenched fist. The two of them wrestled and the applicant told his co-offender, who had emerged, to 'get the hammer'. The applicant attempted to strike the victim to the head with the hammer but the victim blocked the blow. The co-offender struck the victim to the legs with a hockey stick, causing him to fall to the ground. The victim was struck on the back of the head with the hammer, causing him to become semi-conscious. While the victim was lying on the ground, the applicant stood over him and struck him to the legs with the hammer.

9 Some neighbours observed the attack. One neighbour sought to intervene, saying 'That's enough guys, leave him alone'. Another neighbour saw one of the offenders strike the victim to the head with a hockey stick while the second man punched the prone victim to his body. The offenders fled. The victim was left lying in the driveway in an unresponsive, semi-conscious state with blood coming from the rear of his head, his nose and his mouth. He was transported to hospital for emergency medical treatment.

10 As a result of the vicious assault, the victim sustained a depressed right parieto-occipital skull fracture, left facial fractures (zygomatic arch fracture, a left medial and inferior orbital wall fracture), a tiny traumatic sub arachnoid haemorrhage and a right femoral condyle fracture.

11 The applicant was arrested in the early hours of the following morning. He made admissions, identifying his clothing and a pair of steel-capped work boots with visible blood stains on the toe and a blue handled claw hammer located in the boot of his car. In his record of interview, he told investigating police that he had repeatedly struck the victim, that he had asked his co-offender to obtain the hammer, that he just kept hitting the victim's legs and his co-offender kept kicking the victim in the face. He said he hit the victim on the knees 10 times and that his aim was for the victim not to walk again.

12 In explanation for the offending, the applicant said that his father had told him that his brother had been drugged by someone or raped and that his brother had told him that the victim had drugged him. The applicant said that he committed the offence because the victim had driven his brother to heroin and given him HIV or Hepatitis C.

13 It is immediately apparent that this was a very grave assault. It entailed a sustained attack in company. It was premeditated, involved the use of a weapon and resulted in significant injuries to the victim. It occurred outside the victim's home in the early hours of the evening and was observed by, and would have been extremely confronting to, a number of neighbours. Undoubtedly, it called for a term of imprisonment.

14 There were a number of matters, principally the applicant's age, deprived background, cognitive deficits and plea of guilty that served to moderate any sentence. But there was only so far these matters in mitigation could be taken.

15 The applicant was born in Khartoum, Sudan. His father was in the army and had stable employment. As a result of medical problems with the applicant's legs, he was initially moved to Egypt for treatment and, after a year or two of residence there, the family moved to Australia when the applicant was six years of age.

16 The applicant struggled in school, leaving at 17 years of age and attending trade school where he completed certificates in carpentry. He subsequently commenced work as a labourer. He has a long history of drug use including cannabis, Xanax, ecstasy, GHB and alcohol.

17 As will appear, the applicant was assessed as being unsuitable for detention in a Youth Justice Centre. In part that was because of episodes of aggression and violence that occurred when he was in custody awaiting sentence. Brendan Money, Assistant Commissioner, Sentence Management Division, Corrections Victoria, deposed that the applicant had been involved in a number of infractions during his time in adult prison which required him to be placed in a management regime. These matters included assaulting staff and threatening behaviours.

18 On his plea, the applicant relied on a report of Associate Professor Andrew Carroll, a consultant forensic psychiatrist, dated 1 August 2018. Professor Carroll is a very experienced clinician and forensic psychiatrist. He stated that the applicant arrived for his appointment handcuffed and wearing a spit hood.

19 Professor Carroll regarded as significant the following aspects of the applicant's developmental history. Together with his family, he was displaced from Sudan, moved to Egypt and then on to Australia. He exhibited learning difficulties at school affecting both mathematics and literacy. There was clear evidence of alcohol abuse by both of his parents, with involvement of Child Protective Service throughout his childhood. When the applicant was 15 years of age, his mother took her own life, leaving unresolved grief and likely pathological guilt.

20 Professor Carroll noted various symptoms, including auditory hallucinations and a long-standing propensity for acting aggressively in response to feelings of anger. He considered that these symptoms were likely to be post-traumatic in nature, relating to sustained experiences of neglect, abuse and displacement throughout his childhood and adolescence.

21 After noting that diagnostically the applicant is not straightforward, Professor Carroll concluded that there was evidence that the applicant had significant cognitive deficits (requiring further evaluation by a suitably qualified forensic neuropsychologist), a mixed personality disorder and a mixed substance use disorder. In summary, Dr Carroll concluded that the applicant had a combination of severe difficulties with personality dysfunction and cognitive deficits.

22 Professor Carroll noted that the offending appeared to have been motivated by the applicant's belief that the victim had harmed his brother. Professor Carroll did not consider the applicant's belief to have been driven by mental illness. However, he said:

Whether the manifestations of his conditions will deteriorate further in a custodial setting is difficult to say. To a large extent, this will depend on placement. Based on the evidence of his time in custody so far, it certainly appears that due to his cognitive and personality dysfunctions, he is ill-equipped to cope with the rigors of adult prison, and is likely to repeatedly come into conflict with authority. This in turn is likely to lead to further episodes of placement within harsh, profoundly counter-therapeutic and psychologically damaging management regime conditions, as is indeed currently occurring.

23 Professor Carroll concluded that given the applicant's age, his personality functioning and brain development are in a very vulnerable and pliable phase and decisions about his placement over the next few years will likely have far-reaching effects with respect to his neurological development, long-term risk of offending and life trajectory.

24 Despite a number of aspects that called for a large degree of pessimism, Professor Carroll concluded that the applicant had reasonable prospects for rehabilitation, notwithstanding his significant concerns about his pro-violent attitudes and the undoubted severity of the offending in this case. He continued that those reasonable prospects were much more likely to become manifest if the applicant receives various rehabilitative interventions - of the kind identified in the report - both during his time in custody and after his eventual release into the community. Those interventions included a formal neuropsychological evaluation and evidence-based interventions targeting antisocial attitudes and pro-criminal thinking, poor impulse control and emotional dysregulation.

25 In addition to the assessment by Professor Carroll, the applicant underwent a suitability assessment for a Youth Justice Centre Order. The authors of that assessment concluded that the applicant was not suitable for youth justice given his propensity for aggression and violence predominantly towards the staffing group but also other prisoners. Particular concern was expressed that the applicant will undermine the security and safety of the facility should his violent behaviours continue to be displayed. Although he showed signs of successful engagement with programs and work, these positive features were undermined by negative and aggressive behaviours exhibited in prison. The authors noted the applicant displayed little victim empathy or remorse in regards to the offences during the interviews beyond expressing his regret.

26 The judge stated that he was required to have regard to the seriousness of the offending and the applicant's culpability and personal circumstances, but also the interests of the community in denouncing criminal conduct while ensuring rehabilitation and reintegration.[2] The judge noted that by reason of the applicant's youth he was entitled to the approach explained in R v Mills[3] with its targeted focus on rehabilitation.[4]

27 The judge summarised the factors relevant to the seriousness of the offending, including that it was planned, the victim was sought out, a weapon was used, it was undertaken in company, persistent, accompanied by an intention to cripple the victim and afflicted extremely serious injuries.[5] The judge referred to the report of Professor Carroll. He regarded the applicant's prospects of rehabilitation as guarded, concluding that the applicant showed no empathy or understanding about the offending and had not demonstrated genuine remorse.[6] The judge concluded that the principles of general and specific deterrence, just punishment and denunciation called for a stern term of incarceration.

28 The applicant raises a single proposed ground. He contends that new evidence, which was not before the sentencing judge, establishes that the applicant is a non-citizen liable to deportation.

29 The respondent does not object to this Court taking into account the fresh evidence. However, the respondent submits that having regard to the gravity of the offending, no different sentence should be imposed by this Court.

30 Given the position of the respondent, we propose to proceed on the basis that the applicant is not a citizen of Australia and that on 28 February 2019 his visa was cancelled, rendering him liable to be detained and removed from Australia. We further proceed on the basis that these matters may be properly characterised as fresh evidence that may be considered, for the first time, in this Court on an application for leave to appeal against sentence.

31 However, it is appropriate to make some observations about the process that has been adopted and the stringency of the test that applies where a party seeks to adduce fresh evidence. Those principles are well-established.

32 In R v Nguyen and Tran,[7] this Court adopted the following statement of principle governing fresh evidence:

An appellate court cannot set aside a verdict on a 'fresh evidence' ground unless it is satisfied that there has been a miscarriage of justice because the fresh evidence was not put before the jury at the trial ... If this ground is made out, the verdict of guilty will be quashed and, depending on the evidence considered as a whole, the appellate court may direct a retrial or discharge the appellant ... Ordinarily a court will not be satisfied that the 'fresh evidence' ground is made out unless:

(a) the evidence was not available, or could not with reasonable diligence have become available, at the trial;

(b) the evidence is relevant and otherwise admissible;

(c) the evidence is apparently credible (or at least capable of belief); and

(d) there is a significant possibility (or maybe a likelihood) that the evidence, if believed, would have led the jury, acting reasonably, to acquit the applicant if the evidence had been before it at the trial ... If there is any practical difference between a test expressed in terms of 'a significant possibility' and a test expressed in terms of 'a likelihood', none has thus far been suggested; for it has been said that 'likelihood' is no more than 'a substantial - a "real and not remote" - chance regardless of whether it is less or more than 50 per cent' ... .[8]

33 There have now been a number of decisions of this Court that have established the potential importance of immigration status to the exercise of the sentencing discretion.[9] That being so, it ought be well understood by those advising persons charged with serious criminal offences that the question of whether or not the person is a citizen of Australia is a matter to which attention ought be given. It is not appropriate to wait until sentence is passed and steps are taken under the Migration Act 1958 (Cth) ('Migration Act') before giving consideration to the matter. Further, whether or not a person is an Australian citizen is a matter that either should be known or could be ascertained through reasonable diligence. It is not suggested in this case that the applicant made a forensic decision to forbear reliance on this point before the sentencing judge. It is accepted that by reason of inadvertence, no attention was given to the point. And, as noted, we will receive the evidence.

34 The potential for an offender to be deported at the completion of a sentence is relevant to sentencing in two ways. First, the prospect of deportation renders the imprisonment more onerous because the prisoner will face the prospect of deportation. Secondly, the deportation, should it occur, would constitute an additional punishment because it destroys the opportunity for the offender to settle permanently in this country.

35 A cancellation of a visa may also give rise to issues concerning the availability of parole and the potential interaction with s 5(2AA) of the Sentencing Act 1991 but as no reliance was placed on this aspect we say no more about it.

36 Importantly, these matters can and ought to be the subject of specific evidence. That has not occurred in this case. Moreover, although the applicant's visa was cancelled automatically by operation of the Migration Act, that Act provides a facility for the Minister to revisit the question and reinstate the visa. In the present case we were not told, and there was no evidence as to whether an application has been made or might be made. As things presently stand, the applicant is a non-citizen without a visa liable to mandatory immigration detention and removal.

37 Notwithstanding the absence of evidence, in view of the position adopted by the respondent, we proceed on the basis that the applicant is liable to be deported to a country which he fled when he was six years of age and which has a recent history of civil war, generalised violence and unrest. We accept that he has no family connections in that country on which he could call. Further, deportation would sever connections to family members who reside in Australia with whom he has a close connection.

38 In accordance with principle, a sentencing judge is entitled to take into account these matters in the two ways identified above. Deportation in these circumstances may be taken to give rise to a significant detriment and may be relevant to the sentencing discretion. The potential for deportation (which may in any event be avoided by executive action) is relevant but the extent to which it moderates a sentence in a given case is very difficult to calibrate. No fixed rule can be formulated. It will be a matter for the sentencing judge as to the weight that this factor is to be given.

39 However, neither the cancelation of the visa nor any consequent deportation constitutes punishment for the offending and it would be a mistake to treat them as such.[10] They serve a different purpose and are undertaken at the command of the executive. The grave consequences of deportation for the individual cannot replace or stand as a proxy for the imposition of an appropriate sentence by a court following a guilty plea or a finding of guilt. The sentence must still reflect the nature and gravity of the offending.

40 Allowing due weight for the fact that the applicant is liable to deportation and, as a result, his incarceration will be more onerous and he may be precluded from settling in this country, we are nevertheless persuaded that no lesser sentence should be imposed.

41 The aggravating features of the offending have already been identified and need not be repeated. We add that the apparent motivation of the applicant to punish his victim for supplying drugs was not a factor that he could legitimately call in aid of mitigation. It only serves to highlight that the assault was premeditated and undertaken for the illegitimate purpose of vengeance.[11] Our assessment of current sentencing practice for this offence suggests that the judge afforded a high degree of leniency given the ferocity of the attack and its consequences for the victim. However, given the constellation of matters affecting the applicant, we do not regard other cases as being of much significance.

42 Undoubtedly, there were powerful matters that serve to moderate the sentence. We are particularly conscious of the applicant's age and the extra burdens that incarceration poses by reason of his cognitive deficits and the matters identified by Professor Carroll. Professor Carroll acknowledged the difficulties in assessing the applicant's presentation and in predicting the future trajectory. But all of these matters do not justify or warrant a shorter sentence than that imposed by the judge.

43 No different sentence should be imposed. We shall grant leave to appeal but the appeal must be dismissed.

[1] DPP v Akot [2018] VCC 1615 ('Reasons').

[3] [1998] 4 VR 235.

[7] [1998] 4 VR 394.

[8] Ibid 400-1 (Kenny JA, with Winneke P and Callaway JA agreeing).

[9] Allouch v The Queen [2018] VSCA 244; Magedi v The Queen [2019] VSCA 102; Loftus v The Queen [2019] VSCA 24.

[10] Falzon v Minister for Immigration and Border Protection [2018] HCA 2; (2018) 262 CLR 333, 347 [47] (Kiefel CJ, Bell, Keane and Edelman JJ); [2018] HCA 2.

[11] Hamid v The Queen [2019] VSCA 5.