Atem v The Queen [2020] VSCA 35

1 The applicant, Dieu Mawut Atem ('Atem') applies for leave to appeal against sentence.[1] The sole proposed ground of appeal is manifest excess.

2 Atem was convicted, after pleading guilty, of one charge of causing serious injury recklessly, one charge of conduct endangering life and three charges of causing injury recklessly. All these charges arose from an incident that took place in and around the Gasometer Hotel in Collingwood in the early hours of 2 September 2018 ('the Gasometer Hotel incident') and principally relate to Atem's erratic and dangerous use of a car in a manner that caused injuries to pedestrian onlookers. He also pleaded guilty to the related summary offence of unlicensed driving.[2]

3 He was sentenced in the County Court on 6 August 2019 to an aggregate sentence of five years' imprisonment, with a non-parole period of three years.

[Crimes Act 1958 s 17]

Conduct endangering life [Crimes Act 1958 s 22]

Causing injury recklessly [Crimes Act 1958 s 18]

Causing injury recklessly [Crimes Act 1958 s 18]

Causing injury recklessly [Crimes Act 1958 s 18]

[Road Safety Act 1986 s 18(1)(a)]

Other relevant orders: disposal order pursuant to s 78(1) of the Confiscation Act 1991, licence or learner permit disqualification order for 5 years pursuant to s 89A(1)(c) of the Sentencing Act 1991.

5 Atem submits that the aggregate sentence and the non-parole period are both manifestly excessive given a number of factors, including his youth, immaturity, criminal record and traumatic brain injury.

6 In our view, it was open to the sentencing judge to impose both the aggregate sentence and the non-parole period. We do not consider that either the aggregate sentence or the non-parole period was wholly beyond the permissible range of sentencing options available in the circumstances of the case so as to support a conclusion of manifest excess. We would dismiss the application for leave to appeal.

7 On 1 September 2018, Atem was at the home that he shared with his brother and another friend in Endeavour Drive, Cranbourne North, celebrating his brother's birthday and drinking alcohol. Later that evening they were joined by more friends, and at some point all decided to go to a record label launch and live rap music event at the Gasometer Hotel.[3] The Gasometer Hotel is located on the corner of Smith Street and Alexandra Parade, Collingwood.

8 At approximately 9:30 pm, Atem left his home in a Nissan Pulsar sedan that was being driven by another man. Atem consumed more alcohol during the drive from Cranbourne North to Collingwood.[4]

9 At about 10:20 pm, the man driving parked the Nissan Pulsar in Mater Street, Collingwood. Mater Street runs off Smith Street and is parallel to Alexandra Parade. The group exited the car and walked towards the Gasometer Hotel. Atem went inside and continued to drink alcohol.[5]

10 In the early hours of the morning, at about 2:22 am on 2 September 2018, a fight broke out in the bar area. Atem picked up a chair, raised it above his head and threw it into the crowd, where it hit Magang Reech ('Reech') in the back of the head (charge 5 - causing injury recklessly). This incident was captured on mobile phone footage.[6]

11 Shortly after the fight, Atem got the keys to the Nissan Pulsar and left the hotel. While on Smith Street, a further fight broke out with Atem and another man hitting each other. Atem went to the ground and appeared to be unconscious for a brief period, and a number of others continued to fight and assault him while he was on the ground. After a short time Atem regained consciousness, got up, and walked to where the Nissan Pulsar was parked on Mater Street. He unlocked the driver side door and started the car. Another man was in the back of the car at this time.[7]

12 Atem then drove the Nissan Pulsar east on Mater Street, did a U-turn at speed towards Smith Street and drove through a large group of young people who were on the street. He was driving on the wrong side of Mater Street and performed a second U-turn from the right lane into Smith Street, around a street sweeper and into the oncoming traffic lane at Mater Street. He then proceeded at speed east along Mater Street over to Emma Street, narrowly missing a further group of young people still in the street.[8]

13 Atem then executed a third and final U-turn after crossing Emma Street, returning west along Mater Street. He was driving at speed, accelerating towards a number of young people with some force. People had to jump out of the way to avoid being hit. The Nissan Pulsar went onto the left side of the road and, at about 2:44 am, collided at speed with the rear right hand side of a parked red Mazda sedan, and then into a gold Mitsubishi sedan, pushing the Mitsubishi out of its parking spot. The Mitsubishi subsequently collided with a silver Volkswagen that was angle parked in the area (charge 2 - conduct endangering life).[9] Some of this incident is captured on CCTV.

14 During this time, 18-year-old David Bilal Dada ('Dada') and 21-year-old Angoy Ngong ('Ngong') moved off the road and were in between the rear of the gold Mitsubishi and the silver Volkswagen to avoid being hit by the Nissan Pulsar Atem was driving. When the two parked cars collided, Dada was crushed between them, which instantly shattered his right tibia and fibula (charge 1 - causing serious injury recklessly).[10]

15 Ngong was knocked to the ground in the incident (charge 4 - causing injury recklessly). He witnessed Dada's injuries, and recalled seeing a bone poking out of Dada's right leg. Dada was bleeding heavily. Ngong, with the help of police, wrapped his belt around Dada's leg in an effort to stop the bleeding. Ngong also took his shirt off and held it to Dada's face, as he had a big cut along the left side of his face.[11]

16 Akot Majak ('Majak'), an 18-year-old, was waiting for a taxi when he was hit by the Nissan Pulsar. He tried to jump out of the way, but was hit and knocked to the ground (charge 3 - causing injury recklessly). He recalls being on the ground for 20 minutes and not being able to walk. Majak also witnessed his friend Dada's injuries.[12]

17 The force of the impact between the gold Mitsubishi and the silver Volkswagen caused the Volkswagen to mount the footpath and hit a solid brick wall, which resulted in the bricks being pushed in and some cracks forming in the wall.[13]

18 The Nissan Pulsar being driven by Atem had spun around and come to rest facing east in the middle of Mater Street, with the front airbags deployed.[14] This may have contributed to Atem's traumatic brain injury. Atem was surrounded by people trying to get to him inside the car, but the driver's side door could not be opened. Atem and the other man in the car exited the car using the passenger side doors and left the scene.

19 Atem walked to George Street, Fitzroy, where he hailed a passing taxi and asked to be taken to Cranbourne railway station. He pre-paid a $126 fare on his bank card. The pre-paid fare expired near, but before, Cranbourne railway station, so Atem got out and walked the rest of the way home.[15]

Injuries suffered by victims - Dada, Ngong, Majak and Reech

20 Dada was taken to hospital by ambulance and, due to the severity of his injuries, his right lower leg was amputated on 13 September 2018. He recalled having six surgeries to his leg and at one point having a metal rod inserted into his bone. He reported that he had been in a lot of pain.[16] He also received stitches to his left elbow and to his face, from just under the left corner of his mouth extending up his left cheek and to his left eyebrow.[17] He was discharged from hospital on 9 October 2018 and transferred to the Epworth Rehabilitation Centre for further treatment, physiotherapy and recovery.[18]

21 Ngong was taken to hospital by ambulance with Dada. He suffered a laceration to his right hand and experienced pain to his hip. When he arrived at the hospital he was suffering from shock and was placed on an intravenous drip. X-rays showed he had no broken bones.[19]

22 Majak was also taken to hospital by ambulance, as he was unable to walk. He received three sutures to his lower right leg. He was discharged on 3 September 2018.[20]

23 Reech suffered a two-centimetre laceration to the top of his head, and experienced temporary dizziness and blurred vision as a result. He received three sutures to close the wound, and was discharged at about 5:30 am on the morning of 2 September 2018.[21]

24 In a victim impact statement, Dada's mother explained the physical, emotional, financial and social consequences of Atem's offending on her and her family.[22] In particular, she explained that she had been forced to quit her job in order to care for her son. This caused financial strain for the family, with increased medical costs and ongoing living costs such as rent still needing to be met. Furthermore, she felt fearful, socially isolated and withdrawn.

25 Atem was arrested on 2 September 2018 at about 6:45 pm and interviewed. At first he agreed that he had been at the Gasometer Hotel but stated that nothing had happened inside and denied having driven the Nissan Pulsar. He stated that he 'got jumped, ran away, caught a taxi home'.[23] He further stated that he did not remember a lot of the night as a result of having been hit in the head. He initially denied being given the keys to the Nissan Pulsar, but later agreed that he had been given the keys so he could retrieve something from the car, but that after being 'jumped' he did not know what happened to the keys. He agreed to provide a DNA sample and was released pending further enquiries.[24]

26 On 13 September 2018 at 6:55 am, a search warrant was executed at Atem's residential address. Items of clothing he had worn on the night of the incident were seized. At 8:16 am that day, Atem was arrested and taken to Richmond police station for interview. He admitted to driving up and down the street on multiple occasions and colliding with other cars. He also admitted to having been under the influence of alcohol at the time, explaining that he had been drinking a lot during the day as it was his brother's birthday and that he had continued to drink more once he arrived at the Gasometer Hotel.[25] He also admitted to never having held a driver's licence, and indeed to having never had a driving lesson nor driven a car before.[26] When asked if he recalled how many people were on the street when he was driving, he estimated that there were around '200, people cuz, everywhere'.[27] Atem was remanded that same day.

27 Atem pleaded guilty to all charges on the indictment. The matter resolved at the committal mention on 31 January 2019. The judge accepted that Atem had pleaded guilty at the earliest opportunity and his plea was indicative of his remorse and acceptance of personal responsibility.[28] The aggregate sentence imposed with respect to charges 1-4 was intended to reflect the factual and temporal nexus between the four charges.[29] No cumulation was directed with respect to the three-month sentence for charge 5.

Atem's personal circumstances and prior criminal history

28 Atem was born on 9 October 1999.[30] He was 18, but almost 19, years old at the time of the offending. He was 19 years old at the time of sentencing.

29 He was born in South Sudan. His family lived between South Sudan and Kenya for a number of years when he was very young. He was separated from his parents in a refugee camp.[31]

30 In 2006, when he was seven years old, he and his two siblings came to Australia as part of a humanitarian refugee program.[32]

31 Following his arrival in Australia, Atem moved many times. He was initially in the care of an uncle in Springvale, and then in the care of his paternal grandmother. Whilst in the care of his grandmother, he moved around Victoria a great deal, including to Dandenong, Noble Park, Cranbourne, Colac and Pakenham. When Atem was about 10 years old, and his brother about 14 years old, their grandmother became unwell and Atem and his brother ran the house, caught the bus, learned to cook and shared household tasks.[33]

32 Atem's schooling was interrupted. He initially went to an English language school, and then attended six different primary schools and three different secondary schools. He left school partway through Year 10, but completed a Year 10 equivalent at Berwick TAFE and went on to work in labouring in roofing and fencing.[34]

33 In 2016, Atem was granted permanent residency. That same year, his grandmother died. Her death contributed to Atem experiencing a prolonged period of grief, manifesting in feelings of anger, anxiety, isolation and abandonment. The judge noted that Atem was 'ill-equipped' to deal with the feelings of grief and loss that he experienced.[35] He had a brief period of homelessness, and began drinking and associating with a negative peer group.

34 In 2017, Atem was employed as a factory worker at Lotus Folding Walls and Doors in Dandenong South. This was a casual position, but in May 2018 Atem was offered a full-time permanent position, which he held until his remand in relation to the offending in the Gasometer Hotel incident.[36]

35 In the same year (2017) Atem had a court appearance for theft of a motor vehicle, armed robbery and failure to answer bail. In sentencing Atem for the current offences, the judge described the prior armed robbery offending as involving 'four serious armed robberies on soft targets in company with co-offenders'.[37] He was placed on a Youth Supervision Order ('YSO'), without conviction, having spent seven days on remand at Parkville Youth Justice Centre.[38] The YSO expired on 29 February 2019. Atem attended 30 out of 37 supervision appointments.[39] Atem breached the YSO by reason of his offending in the Gasometer Hotel incident.

36 The judge delivered reasons that were conceded on the hearing of the application for leave to appeal to be 'comprehensive, thorough and accurate'. She considered the nature and gravity of Atem's offending. She noted that, in pleading guilty to recklessly causing serious injury, Atem accepted that he had foreseen the probable consequences of his actions and was indifferent as to whether or not those consequences occurred. His guilty plea to the charge of conduct endangering life meant Atem accepted that he had foreseen that placing another person in danger of death was a probable consequence of his conduct.

37 The judge described the charges of recklessly causing serious injury and conduct endangering life as involving 'extremely serious offences', as reflected in the maximum penalties prescribed.[40] She considered Atem's culpability and degree of responsibility. She accepted the prosecution's submission that the offending was a serious example of the offences, and that the sentence imposed ought to reflect appropriate denunciation of this sort of offending.[41]

38 She described Atem as having driven 'backwards and forwards, up and down the street in a manner such that [he] could easily have killed a number of people ... [and] nearly did'.[42] She observed that it was 'simply good fortune' that he did not.[43] She went on to say:

That you had very little, if any, regard for the safety of those in the vicinity of the car you were driving is evident from the way in which you drove the car and which is captured, albeit briefly, by the images on the CCTV footage played during the prosecution opening.[44]

39 The judge rejected Atem's explanation that he had made the foolish decision to drive as a means of leaving the scene. She considered the manner of his driving, in particular his execution of three U-turns, as inconsistent with that submission.[45] She considered that it was also inconsistent with the description he gave to Laura Scott ('Scott'), a neuropsychologist who assessed Atem for the purpose of addressing the question of his suitability for detention in a Youth Justice Centre facility, that he was confused and surprised to find himself driving:

I note that you reported to Ms Scott that, having been struck in the head by your attackers, your next memory was of waking in a vehicle and becoming aware that you were driving. You recalled thinking 'What am I doing driving?' and described being taken aback. When you went to look around to get your bearings, you crashed the car. This does not sit well with the explanation proffered to the court that you made the foolish decision to drive as a means of leaving the scene.[46]

40 Atem presented to Scott with a traumatic brain injury. The judge noted that Atem relied on the effects of concussion and intoxication as explaining why his judgment was clouded. However, there was an express disavowal that Atem's intoxication or concussion was causative of his conduct. Accordingly, it was not submitted before the judge that principles 1-4 of R v Verdins[47] applied, those principles being directed at the way in which impaired mental functioning may reduce the moral culpability of the offending conduct so as to moderate or eliminate certain sentencing considerations, especially general deterrence. The fact that no reliance was being placed on principles 1-4 of Verdins was confirmed at the further plea.[48] This was further confirmed at the hearing of the application for leave to appeal, it being understood from Romero v The Queen[49] that an application for leave to appeal against sentence is not an occasion for the revision and reformulation of the case presented below, especially in the context of Verdins.

41 On the plea, Atem relied, however, on principles 5-6 of Verdins, namely, that impaired mental functioning at the time of sentencing may mean that a sentence of imprisonment will weigh more heavily on an offender than it would on a person of normal health or may mean that there is a serious risk of imprisonment having a significant adverse effect on an offender's mental health. The judge was aware that those factors tended to mitigate punishment.[50] The judge referred to a report of Gina Cidoni ('Cidoni'), a psychologist who assessed Atem in prison, that stated that Atem presented with borderline intelligence and auditory memory index including delayed recall as being in the borderline range. The judge also referred to the cognitive testing undertaken by Scott and her observation that Atem presented with prominent difficulties in information processing speed, higher attention skills, memory and aspects of executive function. She noted that Scott considered that Atem's '"pattern of performance" is consistent with a traumatic brain injury of at least mild severity'[51] and that when Scott assessed him he was in the 'sub-acute recovery phase following the traumatic brain injury, and [his] ongoing recovery leaves [him] particularly vulnerable to external influence'.[52] These factors 'could make [Atem] more vulnerable to manipulation as [he] would be less likely to be able to challenge faulty reasoning or arguments put to [him]'.[53] The judge accepted that principles 5-6 of Verdins applied. She said:

Ms Scott considers that your cognitive impairments are likely to have a detrimental impact on your functioning in the prison environment and opines that there is a high risk of further deterioration in the prison context where you would have limited access to appropriate mental health treatment and supports. I accept the opinions expressed by Ms Cidoni and Ms Scott.[54]

42 Disclosures made by Atem to Cidoni and Scott also provided further evidence of remorse and an acceptance by Atem that his behaviour was wrong.

43 The judge described Atem's prospects of rehabilitation as 'guarded'.[55] She considered there was not a great deal of force in the submission that Atem had complied substantially with the YSO when he had breached it by committing the current offences. However, she had regard to the presence of good protective factors in Atem's life, such as his ability to hold full-time employment, thereby contributing to the community and enabling him to send money to his family overseas. She took into account Atem's brother's continuing support and the support of Atem's former employer. She also took into account that Atem would face hardship because, as an offender liable to deportation, he faced uncertainty as to his future in Australia.

44 The judge considered that, although cases such as R v Mills[56] state that rehabilitation should be a primary concern in sentencing a young offender, nevertheless 'it is equally well established that this principle has sometimes to give way to other sentencing considerations'.[57]

45 The judge rejected the submission that, given Atem's youth and personal circumstances, the sentencing disposition ought to be for a period of detention in a Youth Justice Facility for a period of less than four years. It was urged upon the judge that the preconditions for such a disposition, pursuant to s 32 of the Sentencing Act 1991, were met, namely, that the court ought to believe that there are reasonable prospects for the rehabilitation of the young offender and that the young offender is particularly impressionable, immature or likely to be subjected to undesirable influences in an adult prison. The prosecution submitted that detention in an adult prison was warranted. The judge said:

[Prosecution counsel] submitted that this is serious offending and that a sentence of imprisonment in an adult jail is called for. The Crown did not agree that a Youth Detention Order is appropriate in the circumstances; it is too serious. Your prior matters are for crimes of violence and these are crimes of violence with serious impact on the victims. [Prosecution counsel] relied on the observations of the court in The Queen v Lucas William Bell [1999] VSCA 223 that the principles in Mills are general propositions and are not of universal or automatic application. Each case depends on its own circumstances, including the circumstances of the offence as well as those of the offender. Of significance in that case, the applicant, as is the case with you, was not a first-time offender. The case is therefore one where, '... subject to any particular considerations, besides rehabilitation general deterrence and specific deterrence must bulk large in informing a sound discretionary determination'. ... [In] The Queen v Elizabeth Ann Tran [2002] VSCA 52 ... the court observed that although in the case of a youthful offender, rehabilitation is usually far more important than general deterrence, there are cases where just punishment, general deterrence or other sentencing objectives are at least equally important.[58]

46 The judge went on to say that, in the circumstances of the case, she considered detention in adult prison to be an appropriate sentencing disposition. She emphasised that the offending carried a risk to the lives of innocent pedestrians and that greater weight had to be placed on deterrence, denunciation and community protection than on youth. She remarked that she would give significant weight to youth in setting a non-parole period:

Whilst I am satisfied that, on the basis of the Cidoni and Scott reports, and the pre-sentence report, you are particularly impressionable, immature or likely to be subjected to undesirable influences in an adult prison, that is not the end of the matter. Included in the matters set out in section 32(2) of the Sentencing Act to which I must have regard in determining whether to make a Youth Justice Centre Order is the nature of the offence. ... I accept [the] submission that this is a serious example of recklessly cause serious injury, recklessly cause injury and recklessly engaging in conduct that places or may have placed persons in danger of death. The injuries suffered by Mr Dada were horrendous and resulted in the loss of his right lower leg. Whilst the injuries suffered by the other victims, fortunately, were less serious, nevertheless they were injuries caused to people out at night with friends going about their business. The mobile phone footage taken and played during the prosecution opening shows clearly the fear, panic and distress caused by you to those present. The sentence imposed must reflect denunciation of those who are reckless as to the infliction of serious harm on another person. Your decision to drive without a licence, whilst intoxicated and in the manner in which you drove as previously described require the sentencing objectives of deterrence, denunciation, just punishment and protection of the community to become more prominent in the sentencing calculus and the weight to be attached to youth to be correspondingly reduced.

Having carefully considered, balanced and weighed all of the matters referred to during the course of the plea I consider that a term of imprisonment in an adult jail must be imposed. Your youth is a factor to which I will give significant weight in setting a non-parole period. I have had regard to the matters raised in mitigation on your plea and consider that your sentence ought be tempered by those matters including your guilty plea, the impact on you of the matters addressed in the Cidoni and Scott reports, your personal circumstances including your traumatic background, hardship arising from uncertainty in respect of your permanent residence status, your expressions of remorse, your prospects of rehabilitation and the protective factors relied upon being your brother's preparedness for you to return to live with him and your employer's preparedness to re-employ you upon your release. I consider that it is both in your interests and in the community's interests to structure the sentence in a way that will allow for the possibility of release subject to supervision. I have fixed a non-parole period designed to facilitate that.[59]

47 On the hearing of the application for leave to appeal, there was no challenge to the character of the sentencing disposition; that is, it was not argued that the judge ought to have made a Youth Justice Centre Order. Instead, Atem submitted that the sentencing discretion miscarried because the aggregate sentence and the non-parole period were each so long as to be manifestly excessive.

48 The ground of manifest excess is notoriously difficult to establish. To succeed on this ground, Atem must show that the sentence imposed was 'wholly outside the range of sentencing options available'.[60] The excess must be 'so far outside the range of a reasonable discretionary judgment as to itself bespeak error'.[61] The ground will only succeed if the appellate court considers that the sentence is 'unreasonable or plainly unjust'.[62] This is a very stringent test.

49 Atem submits that the sentence imposed was manifestly excessive having regard to the fact that he will serve his sentence in an adult jail and given his:

(a) youth;

(b) immaturity;

(c) criminal record, which was limited to one Children's Court sentence;

(d) acute post-traumatic amnesia that arose from the beating he was subjected to on or before he committed the offending that constituted the Gasometer Hotel incident;

(e) traumatic brain injury;

(f) early guilty pleas;

(g) remorse, substantial admissions, acceptance of responsibility and willingness to facilitate the course of justice;

(h) immigration status;

(i) history of trauma and loss;

(j) work history and good protective factors; and

(k) time on remand.

50 As mentioned above, there is no attempt to reduce his moral culpability by reliance on principles 1-4 of Verdins. However, it is submitted that the disorientation and the acute post-traumatic amnesia assist in explaining the offending, and the traumatic brain injury has meant that Atem has suffered 'extra curial punishment'.

51 Moreover, it is conceded that, having regard to the gravity of the offending and the seriousness of its consequences, especially for Dada, that it was open to the judge to impose a term of imprisonment. Rather, the fact that Atem will serve his sentence in adult jail is relied upon as relevant given Atem's youth and immaturity and the fact that his cognitive impairments and low mood will likely mean that his time in prison will be more onerous than it would be for other offenders, as the judge accepted.

52 Atem submits that his youth is an especially important consideration. He submits that the incarceration of young offenders has an impact that goes well beyond the obvious restriction on liberty. His aggregate sentence is submitted necessarily to confine him amongst those with extensive criminal dispositions and expose him to fear and the prospect of violence, as a consequence of which any detention should be short. He submits that his youth is significant to more than just the fixing of the non-parole period. Moreover, he submits that although the judge said she would give significant weight to his youth in arriving at the non-parole period, this is not apparent from the non-parole period she fixed, being 60 per cent of the head sentence, a percentage imposed not uncommonly where the head sentence is around that imposed in this case.

53 It is submitted that Atem is not only young but also immature, and this must inform the importance of the facilitation of his rehabilitation as well as the assessment of his moral culpability. It is well accepted that the immature brain can respond to punitive punishment 'in such a way as to make recidivism more rather than less likely'.[63] Being particularly impressionable, Atem is likely to be subjected to undesirable influences.

54 Atem also submits that he engaged positively with his YSO, attending most of his appointments. He submits that the offending involved in the Gasometer Hotel incident did not reflect his true character as much of the offending occurred after he had been assaulted to the point of unconsciousness; a beating that resulted in him experiencing acute post-traumatic amnesia. As evidenced in the report prepared by Scott, Atem also sustained a traumatic brain injury. He emphasises that his experience in prison is likely to be more burdensome than that of other offenders given his brain injury, his youth and the prospect of deportation that looms over him with the potential distress of being separated from his siblings.

55 Atem further submits that the length of the sentence is manifestly excessive given that he pleaded guilty at the earliest opportunity, the pleas reflecting his shame and remorse. He has endured trauma in his life and suffered loss that he had struggled to process. His prospects of rehabilitation are illuminated by his work history and the presence of good protective factors. The factual and temporal nexus between the conduct that gave rise to charges 1-4 should attract an application of the principle of totality so as to compress the sentence.

56 It is argued that the combined force of all the factors identified ought to have resulted in a lower sentence, revealing error. Atem submits that this was not a case that ought to have resulted in him being imprisoned for five years and being required to serve three years before becoming eligible for parole.

57 In response, the Crown submits that the aggregate sentence and the non-parole period fixed properly reflect the gravity of the offending.

58 We consider that the aggregate sentence and the non-parole period are within range in the particular circumstances of the case.

59 In our view, the offending comprising the charge of conduct endangering life is a serious example of an extremely serious offence as is the charge of recklessly causing serious injury. For Atem to foresee that it was a probable consequence of his actions that he had created an appreciable risk of the death of another person, and to be indifferent to that consequence, in the circumstances of this case, warranted severe punishment. To drive a vehicle, as Atem did, at high speed, near and through groups of people walking along the street, who must have been terrified, is behaviour that justifiably attracts a sentence informed by principles of denunciation and community protection. The dangerous manner in which he drove also rendered it more than probable that someone in the position of Dada would suffer a serious injury and that someone such as Ngong would witness the aftermath. Moreover, it is significant that Dada and Ngong suffered their injuries while attempting to shelter between two vehicles to avoid being hit by the car driven by Atem. Dada was crushed between two vehicles, and subsequently suffered the amputation of his right lower leg, directly as a result of having to take evasive action from the frightening way in which Atem was driving. It is undeniable that, as the judge said, Atem had little regard for the safety of those in the vicinity of the car he was driving.[64] In our view, for Atem to place pedestrians in such jeopardy, and to cause the injuries which his offending did, has the consequence that an aggregate sentence of five years cannot be treated as so far outside the range of a reasonable discretionary judgment as to itself reveal error.

60 We have had the opportunity to watch the mobile phone and CCTV footage of the offending and we consider that it further reveals that the sentence imposed was not wholly beyond the range. With respect to charge 5 (causing injury recklessly), for which Atem was sentenced to three months' imprisonment but with no cumulation, the footage reveals that he stood on what appears to be a table, elevated above the crowd, and held the chair above his head and shoulders and ultimately threw it, or smashed it, in a vicious manner. With respect to charges 1-4, the footage shows that pedestrians fled in fear for their lives and appeared, understandably, not to be confident of the direction in which they should run for safety.

61 With respect to Atem's youth, it has been accepted in the authorities that in sentencing a young offender, the offender's youth is an important, and a principal, consideration, with the consequence that rehabilitation is usually a more important consideration than general deterrence.[65] Nevertheless, there will be cases in which the need for deterrence and denunciation will require greater emphasis. In the context of a case concerned with young offenders charged with negligently causing serious injury by driving, Harrison v The Queen,[66] this Court observed:

NCSI [Negligently causing serious injury] by driving is frequently committed by young offenders with otherwise good character, who have a limited criminal history and good prospects for rehabilitation. As was said in Director of Public Prosecutions v Neethling ... :

It is precisely because of the tendency of young drivers to drive dangerously that general deterrence must be regarded as of great importance, and youth must be given relatively less weight.

The objective seriousness of the offence is such that the importance of general deterrence and denunciation is heightened. As the importance of these factors increases, there is a corresponding diminution in the mitigating effect of factors such as the offender's youth and prospects for rehabilitation.[67]

62 The same view was expressed by Redlich JA in Azzopardi v The Queen, in respect of serious vicious assaults by youths in public places, where he observed that '[a]s the level of seriousness of the criminality increases there will be a corresponding reduction in the mitigating effects of the offender's youth'.[68]

63 In our view, the very serious nature of Atem's offending has the consequence that his youth will not provide the strong mitigating effect he seeks. His youth and immaturity must, to some degree, be subordinate to the other sentencing considerations the judge identified, including denunciation, general deterrence and protection of the community.

64 We consider that the judge correctly took into account the submission that the offending is partly explained by Atem's post-traumatic amnesia, his having woken from unconsciousness after being assaulted. In the absence of reliance upon principles 1-4 of Verdins those factors could do no more than assist in providing an explanation and not an excuse, nor could they reduce his moral culpability. We also consider that it is apparent from the judge's reasons that she was well aware of, and took into account, the fact that the traumatic brain injury Atem suffered, alongside his other forms of cognitive impairment, will contribute to an especially onerous experience of prison.

65 We consider that the judge was also correct in her view that little reliance could be placed on Atem's engagement with the YSO in circumstances where his offending during the Gasometer Hotel incident breached the YSO. The breach, which is significant in the circumstances of the case, demonstrates a lack of compliance with, and respect for, an order of the court that was designed to assist Atem's rehabilitation, and provide him with professional support to encourage that end.

66 In our view, the reliance placed on Atem's prior criminal history is misplaced. Any attempt to diminish that previous history by reference to the Children's Court is undermined by consideration of the nature of the offending to which the order of the Children's Court relates. The offences involved theft of a motor vehicle, armed robbery and failure to answer bail. As the judge correctly noted, the armed robberies were 'crimes of violence'[69] carried out on 'soft targets'.[70] These included a service station and fast food outlets. Atem was in the company of other youths. He wore a dark face covering and, in one incident, he made demands that the cash register be opened from which he, and his co-offenders, took sums of cash. In two of the armed robberies, Atem was armed with a metal pole.

67 As mentioned, the judge assessed Atem's prospects of rehabilitation as 'guarded' while acknowledging the protective factors in his life, especially his brother's ongoing support and commitment to him. While it is to be hoped that those protective factors will assist Atem to turn his life around, the cautious nature of the assessment must mean that supporting his prospects of rehabilitation cannot be the overriding goal of any sentence imposed.

68 It is clear that the judge took into account the utilitarian benefit of Atem's early guilty pleas and accepted that they indicated genuine remorse, as further supported by the reports from Scott and Cidoni. The judge was willing to treat the uncertainty of Atem's immigration status as something that would bear upon his time in prison, as would the effects in his life of trauma and grief.

69 With respect to the non-parole period, while a period that is 60 per cent of the head sentence is not uncommon in cases where the head sentence is around that in this case, it is unclear what percentage the judge might have considered imposing had she not placed emphasis, in this respect, upon Atem's youth. It is accepted by Atem that the seriousness of his offending would also affect the non-parole period as well as the head sentence. In any event, there is no specific error alleged and we do not consider that a non-parole period of three years is, in the circumstances of the case, manifestly excessive. Nor, for the reasons we have given, do we conclude that the aggregate sentence of five years is manifestly excessive.

70 The application for leave to appeal against sentence should be dismissed.

[1] DPP v Atem [2019] VCC 1177 ('Reasons').

[2] This was transferred to the County Court under s 145 of the Criminal Procedure Act 2009.

[30] The Crown submits that Atem's birth date is variously recorded also as 1 September 1999 or sometime in November 1999. The differences are not material.

[46] Reasons [34] (emphasis in original).

[47] [2007] VSCA 102; (2007) 16 VR 269, 276 [32] ('Verdins').

[49] [2011] VSCA 45; (2011) 32 VR 486.

[56] [1998] 4 VR 235 ('Mills').

[59] Reasons [59]-[60] (emphasis added).

[60] Clarkson v The Queen [2011] VSCA 157; (2011) 32 VR 361, 384 [89].

[61] Hanks v The Queen [2011] VSCA 7 [22].

[62] R v Pham [2015] HCA 39; (2015) 256 CLR 550, 568 [56] (Bell and Gageler JJ); quoting House v The King (1936) 55 CLR 499, 505 (Dixon, Evatt and McTiernan JJ).

[63] CNK v The Queen [2011] VSCA 228; (2011) 32 VR 641, 662 [77].

[64] See [38] above.

[65] Eade v The Queen [2012] VSCA 142; (2012) 35 VR 526, 534-5 [40]-[44].

[66] [2015] VSCA 349; (2015) 49 VR 619.

[67] Ibid 645 [115]-[116] (citations omitted).

[68] [2011] VSCA 372; (2011) 35 VR 43, 57 [44].