Atesok v The Queen [2018] VSCA 22

Theft of a motor vehicle - s 72 Crimes Act 1958

10 years - s 74 Crimes Act 1958

Manslaughter - Common Law Crimes Act 1958

20 years - s 5 Crimes Act 1958

Arson - s 197(1) Crimes Act 1958

Pre-Sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991:

S6AAA Statement: 15 years, NPP 12 years

Other relevant orders: Disposal Order, Forensic Sample Order and an order pursuant s 89(4) Sentencing Act 1991 disqualifying the prisoner from holding a driver licence for 12 months commencing upon the date the prisoner becomes eligible for release on parole.

2 Atesok seeks leave to appeal on the following ground:

Ground One

The sentences imposed on the charge of manslaughter and the orders for cumulation, non-parole period and total effective sentence:

(i) are manifestly excessive; and

(ii) outside the range of sentences reasonably open in the circumstances of the offence and the offender; and

(iii) resulted in a total effective sentence and non-parole period that was manifestly excessive and in breach of the principle of totality.

3 For the reasons that follow, I would refuse leave to appeal.

4 On the afternoon of 31 December 2015, Atesok shot the victim, Nathan Knight ('Knight'), from a moving vehicle. The car was stolen. The single shot fired by Atesok led to the bullet striking Knight in the left eye and penetrating his skull and brain. The victim died a short time later at Royal Melbourne Hospital. At the time Atesok was on bail in relation to charges including kidnapping, false imprisonment, robbery, intentionally causing injury, recklessly causing injury, assault and theft. He had breached his bail conditions and was 'on the run'.[2] Subsequently the stolen car was set on fire in an unsuccessful attempt to prevent it being identified.

5 The victim was known to Atesok. A long term associate of Atesok, Elias Makhoul ('Makhoul'), sought Atesok's assistance to recover money owed by Knight. Makhoul, who was in custody in the Marngoneet Prison, had frequent contact with Atesok in the period leading up to 31 December 2015 for the purpose of urging Atesok to enforce the debt or to exact some punishment on Knight. Atesok in turn called or texted Knight on a large number of occasions, saying he would 'get' Knight, and demanding they meet or there would be consequences.

6 At 6:00 am on 28 December 2015, a grey Mazda 6 station wagon was stolen from the Diamond Valley Smash Repairs business in Bundoora. That was the car that Atesok was driving when he shot Knight and in respect of which he was charged with theft of a motor vehicle. There was evidence of the stolen car being at premises where Atesok had been seen in the days following its theft and of Atesok driving it on 29 December 2015.

7 On the day of the shooting, Atesok again sent text messages to Knight, who did not acknowledge that he owed any money. That afternoon Knight was at premises in Lalor visiting friends. He had arranged to meet a woman there for the purposes of selling her drugs. The woman arrived with her boyfriend and their two year old daughter, and parked outside. Knight came outside to speak to them and was standing next to the driver's side door of the woman's vehicle.

8 CCTV footage showed Atesok parked in the stolen car a short distance away. He was wearing a cap and his face was covered with a cloth tied at the back. At 3:14 pm, as Knight stood next to the woman's car, Atesok drove the stolen car towards Knight, who started to run. Knight only got a short distance before Atesok reached him, and fired a shot at him from a firearm through the open passenger side window. The bullet hit Knight in the head and he collapsed. Atesok kept driving.[3] Knight was taken by ambulance to Royal Melbourne Hospital, where he died.

9 Atesok was initially charged with murder, but, as the judge noted,[4] that was changed to a charge of manslaughter after the prosecution took the view, on the basis that the shot was fired out of the passenger side window of a moving vehicle, that the Crown could not establish that Atesok had an intention to kill Knight or cause him really serious injury.

10 After these events, four of Atesok's associates decided to destroy the stolen car to prevent it being identified. They set fire to it at an industrial estate at Campbellfield. The judge found that this act was done for Atesok's benefit, although he was not present.[5] This conduct was the basis for the charge of arson. Later, Atesok returned to the burnt car with two of his associates to check if it had been destroyed, and found the engine still running and the car not badly damaged. They then took the car to premises at Fawkner, where they started to strip it.

11 The judge described Atesok's 'extraordinary conduct'[6] in relation to the offence of manslaughter as 'a very serious example of the offence'[7]: it was clearly premeditated, involving a planned and deliberate act of violence during which Atesok discharged a firearm when other members of the community were in the vicinity, including a child. The judge noted that the offence was committed while Atesok was on bail and in breach of that bail order.

12 The judge was prepared to accept that Atesok was remorseful. He had offered to plead guilty to manslaughter at the earliest possible stage in the proceeding.[8] The judge noted that there was utilitarian value in such an early guilty plea in avoiding the need for a contested committal hearing and for a trial. It also demonstrated remorse. The judge observed that Atesok had made statements to Carla Lechner, a clinical psychologist engaged to provide a report on Atesok's behalf for the purposes of the plea, which demonstrated that he was devastated by what he had done and that he held 'immense guilt and regret'.[9] Ms Lechner set out those statements in her report in the following terms:

He [Atesok] stated that he called the victim many times to arrange a meeting to collect the money. He stated that the victim 'told me to piss off ... I felt angry and pissed off ... nothing was planned, not meant to happen ... I can't believe a life is gone ... it was just like to scare, I wasn't even supposed to do that, it was not meant to happen ... he dropped, I thought "I couldn't have got him" ... I turn on the TV and it's all over the news, I couldn't believe it, like a nightmare'. Upon learning that the victim had died, Mr Atesok stated 'it was like the world had finished, I felt so bad, felt like nothing left, his life over for no reason'. He could not explain why he did not hand himself in. He stated that he pleaded guilty to the arson even though he was not directly involved.

13 Other matters noted by the judge included the continuing support of Atesok's family despite his regular involvement in the criminal justice system and his regular drug abuse. And while the judge made reference to a number of written references from Atesok's family, friends and associates referring to his good character and expressions of remorse (although no evidence was called at the plea), the judge remarked that: 'I am sure these people mean well but their perceptions of you obviously have limits'.[10]

14 In relation to Atesok's prospects of rehabilitation, the judge noted that Atesok voluntarily completed in 2012 a 30 day program run by the Hader Clinic, during which he remained abstinent from all substances and compliant with the program for the entire treatment duration. However, the judge went on to say:

[A]s I pointed out to your counsel one of the indicators of positive prospects is some level of insight into your situations and the offences you have committed. In my opinion, given your previous unwillingness to accept opportunities to deal with your drug dependencies and to change the manner in which you live your life, I am extremely guarded about your prospects for the future.[11]

15 As these remarks show, the judge was clearly concerned about Atesok's 'very substantial and serious criminal history'.[12] He had observed that Atesok's prior convictions showed that he has 'a very poor history in the criminal justice system'.[13] That history started in 2005 with an offence of intentionally cause injury for which a community based order was imposed (with which he failed to comply), then burglary, theft, theft from a motor vehicle and affray in 2007; recklessly causing injury and wilful damage to property in 2010; another offence of recklessly causing injury in 2011 resulting in an intensive corrections order (also not complied with); intentionally damaging property, offences in relation to the retention of stolen goods and obtaining property by deception, theft of a motor vehicle, possession of methylamphetamine, possession of a drug of dependence being a prescription drug and possession of cannabis, all in 2012; possessing a controlled weapon without an excuse and going equipped to steal, theft, driving while disqualified, using an unregistered vehicle, dealing with property suspected of being the proceeds of crime, attempting to obtain a financial advantage by deception, unlicensed driving, committing an indictable offence (handling stolen property, drug offences and possessing ammunition) while on bail, all in 2014; and retaining stolen goods, contravening a condition of bail and possession of methylamphetamine, as well as other drug possession offences, and contravening a Community Correction Order in 2015.

16 The judge indicated he would sentence Atesok on the basis that his criminal record is a significant one. Atesok does not seek to challenge the judge's finding about the seriousness of his record. The judge further remarked that Atesok's criminal record undermined the submission made that he has good prospects of rehabilitation.

17 These misgivings about Atesok's future were supported by the judge's reference to Atesok's history of drug use. From the age of 14, Atesok started to use marijuana and then began using ecstasy and methylamphetamine at 18. Those years were affected by his older brother's heroin addiction. By his early twenties, Atesok was using methylamphetamine every day. The judge noted that Ms Lechner recorded Atesok as having told her that he knew he had a drug problem but he did not know how to deal with it. The judge observed:

Ms Lechner seems to suggest that you have insight into the connection between your mental health, offending and drug use. She described your current risk of violent behaviour as 'high/moderate'. That, she says, will improve with abstinence from drugs. You also suffer from moderate levels of depression and anxiety.[14]

Obviously a substantial term of imprisonment is warranted particularly for the offence of manslaughter you have committed. You are entitled to a discount from the sentence I impose on you as a result of your early indication of a plea of guilty and for the remorse you have expressed and which I accept is genuine as well as the utilitarian value of your plea.

However, considerations of specific and general deterrence, denunciation and protection of the community all require that a very significant sentence be imposed on you.[15]

19 Atesok submits that the sentence imposed for the charge of manslaughter was manifestly excessive given the following matters:

(a) His plea of guilty and all the associated utilitarian benefits of such a plea;

(c) The finding that he was genuinely remorseful for his offending;

(d) The disruption to his early developmental years because of an older brother's addiction to heroin;

(e) The fact that the offending occurred in the context of a long term addiction to methamphetamine;

(f) His previous attempts to rid himself of his drug addiction by attendance at residential drug rehabilitation facilities;

(g) His suffering from moderate levels of anxiety and depression;

(h) The significant and ongoing support from family and friends.

20 The Crown submits that reliance on the context of Atesok's offending, as being within the period of his long term drug addiction, as a mitigatory factor is misplaced. The information he gave Ms Lechner acknowledged that his past drug use led to self-destructive behaviour including violence, and that prior to the shooting, he 'had been up for about six weeks on Ice and GHB'. Moreover, Ms Lechner had expressed the view that 'Mr Atesok appears to have insight regarding the nexus between his substance abuse, mental health problems and offending'. The Crown did not submit before the sentencing judge that the evidence of prior drug taking was an aggravating factor but, in response to the application for leave to appeal, the Crown submits that it was not mitigatory.

21 I agree. It was not submitted that the taking of drugs by the applicant prior to the offending made him act in ways that could not reasonably be expected. Indeed, given the applicant's long history of drug taking and its known effects on his behaviour, he could be expected to have well understood in general terms how taking drugs and not sleeping might make him act. Furthermore, with respect to Atesok's reliance on his earlier attempts at rehabilitation, which regrettably have not been successful, it is necessary to be mindful that the sentencing judge was, as mentioned, 'extremely guarded about [Atesok's] prospects for the future'.[16] This evaluation is supported by the assessment by Ms Lechner which, as the sentencing judge remarked, is to the effect that, for Atesok, the 'current risk of violent behaviour [is] as 'high/moderate'.[17]

22 Atesok submits that the sentence of 11 years for the charge of manslaughter does not reflect a substantial reduction, given his genuine and early offer to plead guilty. Indeed, had the sentence of 15 years indicated in the s 6AAA declaration been imposed, it would have been equal to the highest sentence for manslaughter ever imposed in Victoria.[18] And while he acknowledges that the s 6AAA declaration is notional and would not be subject to appellate review as a 'sentence', he contends that it does indicate that the judge did not provide a substantial reduction for his plea and this may be taken into account when assessing manifest excess.

23 The Crown submits, and I agree, that, quite apart from the limited relevance that the s 6AAA declaration would have, given its notional significance, Atesok's attempt to rely on it is based on a faulty premise. The s 6AAA declaration was for a total effective sentence in respect of three offences and not referable only to the charge of manslaughter. The sentence imposed for manslaughter was 11 years, significantly less than the highest sentence imposed.

24 Atesok submits that the assessment of his culpability should bear in mind that he pleaded guilty to unlawful and dangerous act manslaughter, an offence that does not involve an intention to kill or cause really serious injury. He invites the Court to compare the circumstances of his offending, where he fired a single shot at the victim through the open passenger window of a moving car, with those present in R v AB [No 2],[19] where the offender was sentenced, following a jury verdict of not guilty of murder but guilty of manslaughter, to a term of imprisonment for 15 years on that charge. In that case, AB had shot the deceased multiple times with a 12-gauge shotgun in premeditated circumstances where the sentencing judge said: 'Provocation though there may have been, your massacre of the deceased was an outrage'.[20]

25 The Crown submits that the circumstances of this offending are such that Atesok's moral culpability must be seen to be very high. Although it is true that the charge was reduced to unlawful and dangerous act manslaughter, the prosecutor submitted below that it was a 'line ball case and that's what makes it at the very high end'.

26 The shooting was premeditated and planned. It was committed in breach of bail. There were other people, including a child, in the immediate vicinity. The vehicle slowed down so it was only metres from the victim when the shot was discharged in the victim's direction. In my view, it cannot be denied that this was, as the sentencing judge found, 'a very serious example of the offence' of manslaughter.[21]

27 Atesok points to sentencing statistics for the offence of manslaughter which show that between 2011-12 to 2015-16, of the 73 people convicted of this offence, only six received a sentence of imprisonment between 11 to 12 years, and only two received a sentence greater than 12 to 13 years.[22] However, he acknowledges that, as the High Court stated in Director of Public Prosecutions v Dalgliesh (a pseudonym),[23] current sentencing practices are one factor, and not the controlling factor, in the fixing of a just and appropriate sentence.

28 The Crown submits that reliance on sentencing statistics should be approached with caution because the scope of activity encompassed by the offence of unlawful and dangerous act manslaughter is 'broad in the extreme'. This would appear to be accepted by Atesok as he acknowledges that the offence of manslaughter arises in a diverse range of factual scenarios.

29 Atesok submits that the orders for cumulation are excessive. He contends that the offences of manslaughter and the theft of the motor vehicle were effectively one transaction and so this called for total concurrency. Cumulation of 50 per cent was excessive. Likewise, the cumulation of 33 per cent with the sentence for arson was excessive given Atesok's limited involvement in that offence. Taken as a whole, the sentence also offended the totality principle.

30 In my view, the submission that the manslaughter and theft offences were a single transaction, should be rejected. They were two separate and distinct acts, removed by time and location. The manslaughter offence took place at Lalor on 31 December 2015. The theft charge was alleged to have occurred 'at Bundoora and other divers places in Victoria between the 28th day of December 2015 and the 1st day of January'. The fact that the stolen car was used to commit the offence of manslaughter does not render the offending a single transaction. There was clearly criminal conduct encompassed by the theft charge that was distinct from the facts of the manslaughter. Atesok's involvement in the arson, although limited, warranted a degree of cumulation and, in my view, cumulation of 33 per cent is appropriate to reflect the degree of additional criminality involved in that offending. I consider that it is not reasonably arguable that the sentence offends the principle of totality.

31 No specific submissions are made by Atesok about the non-parole period.

32 In my opinion, leave to appeal should be refused. This was extremely serious offending with high moral culpability. I do not consider that it is reasonably arguable that a sentence of 11 years' imprisonment for a premeditated and highly dangerous act, committed in the vicinity of other people including a child, in breach of bail, is manifestly excessive. The judge went to some length to consider the matters advanced on behalf of Atesok in mitigation, but it is clear that he quite reasonably gave considerable weight to the principles of specific and general deterrence, and the objective of protecting the community. A significant sentence was warranted. Given the objective gravity of this offending, and taking into account the circumstances of mitigation, in my view it cannot be said that a sentence of 11 years' imprisonment for manslaughter, is unreasonable or plainly unjust.

33 Furthermore, I do not think it is reasonably arguable that the orders for cumulation are excessive.

34 In these circumstances, I refuse leave to appeal against sentence.

[1] R v Atesok [2017] VSC 599 ('Sentencing reasons').

[8] Once Atesok was charged with murder he instructed his solicitors to offer a plea to manslaughter at the earliest possible stage of the proceeding. It appears that this offer was initially rejected by the prosecution.

[16] See [14] above.

[17] See [17] above.

[18] R v AB [No 2] [2008] VSCA 39; (2008) 18 VR 391.

[19] [2008] VSCA 39; (2008) 18 VR 391.

[21] See [11] above.

[22] Sentencing Advisory Council, Sentencing Snapshot: Sentencing Trends in the Higher Courts of Victoria: 2011-12 to 2015-16: Manslaughter (2017) No 199.

[23] [2017] HCA 41; (2017) 349 ALR 37, 51 [68].