Crown v Accused

2 The offence of manslaughter carries a maximum penalty of 25 years imprisonment. As manslaughter is a Category 2 offence under the Sentencing Act 1991 ('the Act'), s 5(2H) requires the Court to impose a custodial order unless one of the exceptions set out in the Act applies. None of those circumstances are relevant here.

3 On 15 September 2022, Bol Guak ('the deceased') was at his home in Noble Park, an apartment he shared with three friends. In the afternoon he went next door, to number 12, and stayed there with a number of friends. At about 11pm, two of the group went out for pizza and drinks for the group.

4 When they returned to number 12, they discovered that the group had moved next door to the deceased's property. They went next door to the deceased's apartment and found you, the deceased and another friend sitting on the deceased's bed.

5 Throughout the evening, you were observed arguing with the deceased in a language other than English. It is unclear what the argument was about or when it began, and you apparently have no recollection of what spurred the dispute.

6 At some stage, the deceased and his friend were laughing together, which prompted you to state 'do you think I'm joking'. You produced a kitchen knife in your right hand, lent across and stabbed the deceased twice to the chest. The deceased appeared initially unaware that he had been stabbed, but then the witnesses quickly began to render assistance.

7 A call was placed to emergency services shortly after 1am . You remained on the bed next to the deceased. When asked by a member of the group about what had happened, you smiled and said 'I did it man'.

8 Police arrived and observed you laying on the bed next to the deceased amidst the chaos of the other partygoers seeking to give him assistance. Paramedics arrived at around the same time and attempted to resuscitate the deceased. Tragically, he was declared dead at 1:37am.

9 You were arrested and charged with murder. You were assessed as unfit for interview.

10 An autopsy was conducted by Dr Brian Beer on the morning of 16 September 2022. The deceased was found to have two stab wounds - one to his left lung, and one to his heart - which were determined to have caused his death.

11 The court received several victim statements that speak to the tragedy of Mr Guak's death.

12 Mr Guak's cousin, Regina David, describes the deceased as always being a good boy. She describes how important the deceased was within his broader family. As the only male in his family, the deceased was intensely aware of his responsibility to support his family back in Africa and would send money back to them from his job, even when he was unemployed throughout the pandemic. His loss places both an emotional and financial burden on them. Ms David also reports that the deceased's parents were unable to attend his funeral and this caused them tremendous hardship. She has felt disconnected from her community since the death and avoids the church which had previously brought her joy out of fear of seeing your family.

13 Mr Guak's cousin, Ban Diu, describes the deceased like a little brother. She describes the deceased as a happy and respectful young man. She has nightmares about the loss of her cousin. Another cousin, Mer Diu, has not been able to talk about the death of her cousin, her best friend. A sorrow hangs over her.

14 Nyakong Guak, the deceased's older sister, found out about her brother's death on the news. They shared a close bond and he would often stay with her family, helping them out. A sadness hangs over her and she stays away from her community. She also speaks to the pain experienced by the deceased's father, who is suffering depression and insomnia in the wake of his son's tragic death.

15 I have had regard to these victim impact statements in considering the appropriate sentence for you. While no sentence can seek to address the pain of the loss of Mr Guak, I want to make it clear that I have reflected on the very real aftermath of this tragedy for the family of the deceased.

17 You were born on the 1st of January, however it is uncertain whether that was in 1992 or 1993. For the purpose of this ruling, I accept you were 29 years old at the time of the offending. You are now 31 years of age.

18 Around the time you were born, your family fled Sudan to a refugee camp in Ethiopia, where you spent the first decade of your life. During that time, you were exposed to ongoing violence, deprivation and war-related trauma. Among the countless acts of violence, you witnessed the killing of your cousin in front of you.

19 You are the eldest of eight children. You lived with your parents until your early adulthood. Prior to this offending, you were living elsewhere and seemingly had very little contact with your relatives. You described yourself as the 'black sheep' of the family, as you are the only member of your family who has been in trouble with the law.

20 Your family migrated to Australia in December 2002. Before your arrival in Australia, you had not attended any formal schooling and did not speak English. You had lived all of your life in a refugee camp and you were exposed to violence and a lack of services. Upon your enrolment at school in Australia, it became apparent that you had significant learning and behavioural difficulties.

21 In 2003, when you were around 10 or 11 years old, you were assessed as having borderline to mild intellectual deficits. Your verbal, attention, and learning skills were assessed as being equivalent to that of an average five or six year old. Further testing in 2011 suggests that you are moderately to mildly intellectually disabled, although you did not qualify for a diagnosis of intellectual disability.

22 You attended school up to Year 10, but were expelled midway through that year due to your truancy and disruptive behaviour. You previously stated that it was as this point you 'decided to give up' on life. You began to associate with negative peer influences who engaged in cannabis use and heavy drinking. Your life subsequently became characterised by significant alcohol consumption. You have experimented with other illicit substances, and are currently prescribed methadone whilst in custody.

23 The only psychological assessments before the Court were conducted in 2011 by Dr Aaron Cunningham and Ms Pamela Matthews in advance of a County Court appearance. You were reluctant to receive an assessment in preparation for your plea hearing in this matter and, following an application by your counsel, the Court ordered a pre-sentence report on 31 July 2024 pursuant to s 8A of the Act. An appointment was organised for you with a neuropsychologist on 29 August 2024 and with a psychologist on 5 September 2024. Unfortunately, you declined to attend both of these appointments. As a result, the reports from 2011 remain the most recent indication of your mental health.

24 You reported to Dr Cunningham that you were experiencing nightmares as well as flashbacks of your experiences of war and violence when intoxicated. He considered that you experience Depression and Anxiety as a result of this exposure to war-related trauma, but did not consider that you met the diagnostic criteria for Post-Traumatic Stress Disorder (PTSD) at that time.

25 Dr Cunningham and Ms Matthews considered that you presented within the intellectually impaired range. On the other hand, Ms Matthews suggested in her report that you continued to report the residual symptoms of PTSD at that time and felt that you may have met the diagnostic criteria for this condition.

26 Despite this, you do not identify as a person with a disability, or as someone who suffers from any mental illness.

27 You have a relevant prior history, including some lengthy terms of imprisonment for violent offences.

28 In 2011, at the age of 18, you received a sentence of six years' imprisonment for offending involving intentionally causing both injury and serious injury, armed robbery, and other property offences.

29 In 2018, you were placed on a community correction order ('CCO') for property offences and making a threat to kill. You failed to comply with that CCO and you were sentenced for the breach the following year, alongside further weapon and assault charges. On that occasion you received a sentence of 15 months' imprisonment.

30 In 2021, you were sentenced on two occasions for affray, the latter of which also coincided with a charge of unlawful assault. For those matters, you received terms of imprisonment of eight and 10 months respectively.

31 Interspersed with those matters are sentences for charges of being drunk in a public place and possession of cannabis, which no doubt correspond to your admitted drug and alcohol use.

32 I turn now to the sentencing considerations in this matter. There are mitigating elements to your offending, including that the offence was spontaneous and there is no evidence of premeditation. You did not seek to conceal your involvement in the offending.

33 At the same time, Mr Guak was killed in his home. He was entitled to feel safe there. You did not attempt to render assistance to him, although I accept there was a limited opportunity for this before you were set upon by the others present. You assaulted Mr Guak with a weapon, a large kitchen knife, and you stabbed him twice with lethal force to the chest with no apparent provocation. There is a scourge of knife violence in this State and it too often has tragic results. This aggravates your conduct and I consider that your offending is somewhere in the vicinity of the mid-range for manslaughter.

34 Turning to other mitigating factors, your counsel encouraged me to conclude that limb 5 of R v Verdins[1] is enlivened in this case, as a result of your intellectual impairment. The reports of Dr Cunningham and Ms Matthews certainly point to a degree of cognitive impairment, although I accept the submission from the prosecution that I cannot rely on such historic materials for a rigorous application of these principles. Nevertheless, I note that Ms Matthews considered that a prison environment would likely exacerbate your mental state. I therefore accept that a modest application of limb 5 of R v Verdins is appropriate.

35 It was further submitted by your counsel that the circumstances of your upbringing call for a general application of the principles in Bugmy v The Queen.[2] In particular, your exposure to significant violence throughout your childhood has led you to consider conflict and violence as a part of your 'normal'.

36 It is well established that refugees are likely to endure traumatic experiences in the course of leaving their countries,[3] and you provided a brief glimpse into your personal experience during the consultations with Dr Cunningham and Ms Matthews. These experiences can lead to severe psychological impacts, including PTSD.[4] Children raised in that environment commonly experience a series of adverse symptoms, including conduct problems, aggressive behaviour and delinquency.[5]

37 I accept, as stated by the High Court in Bugmy v The Queen, that the experiences of childhood violence do not diminish over time. The literature makes it very clear that violence is endemic within the experience of refugee families as they make their way to Australia (and beyond). For that reason, despite the absence of more recent material to demonstrate the specific impact of your upbringing on your offending, I consider that your moral culpability is modestly reduced by your childhood experiences.

38 This mitigation needs to be balanced against all other sentencing factors, including your prospects of rehabilitation and remorse.

39 You are currently not working while on remand, and have not engaged in any courses. In 2011, and in relation to different offending, you were assessed as having limited insight into your behaviour and deficits in empathy. You were assessed by both Ms Matthews and Dr Cunningham as being a moderate risk of violent re-offending, but Ms Matthews' opinion was that comprehensive and appropriate treatment was likely to significantly lower that risk. I have no option except to consider that your prospects of rehabilitation are poor. You have failed to engage with any supports in custody and your history of offending demonstrates that engaging with treatment is necessary for any sort of rehabilitation.

40 You made an offer to plead guilty on 6 July 2023 and again on 5 February 2024. Although rejected, these represent very early pleas and you are entitled to a reduction in your sentence as a result of an early plea. While this serves a utilitarian purpose, it is not available to me to conclude that this is evidence of remorse. There is no actual evidence of remorse by you for your conduct.

41 Your counsel submitted that you are entitled to a sentence discount on the basis that your time in custody was impacted by pandemic-related delays. I consider that any discount in that regard is very modest now that pandemic backlogs have cleared.[6]

42 The parties drew my attention to a number of 'comparable' cases in determining the appropriate sentence in this matter and I have had regard to these rulings.

43 I must also consider the principles and purposes of sentencing as outlined by the Act.

44 The Act relevantly provides that 'a court must not impose a sentence that is more severe than that which is necessary to achieve the purpose for which the sentence is imposed'.[7] This reflects the common law principle of parsimony. I have had regard to this principle when considering the appropriate sentence.

45 The Act provides that the only purposes for which sentence may be imposed are general and specific deterrence, denunciation, protection of the community, just punishment and rehabilitation.[8]

46 Just punishment has a role in this matter as your actions have robbed a young man of his life. General deterrence has a part to play in sentencing you, although I accept that you are not an overly suitable vehicle for general deterrence as a result of your mental impairments.

47 As I have said, you are entitled to a modest reduction in your moral culpability as a result of your difficult upbringing. However, your propensity for violence, your lack of remorse and your poor prospects of rehabilitation increase the need for specific deterrence and for a sentence to adequately protect the community. Without treatment and engagement, you are destined to reoffend. It is hard to see this sentence serving a rehabilitative purpose, however I hope that a lengthy period of time in custody will prompt you at some point to take up the opportunity to access any resources available to you in custody, including mental health supports.

48 Mr Gatwech-Chouil, for the offence of manslaughter, I sentence you to imprisonment for nine years.

49 I order that you serve seven years before becoming eligible for parole.

50 I have imposed on you a less severe sentence than I otherwise would have because you pleaded guilty to this offence. Pursuant to s 6AAA of the Act, I declare that but for your plea of guilty, I would have sentenced you to 12 years imprisonment with a non-parole period of 10 years.

51 I further declare that you have served 789 days of pre-sentence detention, not including this day.

[1] [2007] VSCA 102; (2007) 16 VR 269, [32].

[2] [2013] HCA 37; (2013) 249 CLR 571, [40].

[3] Trauma and Grief Network, Refugees and Asylum Seekers: Supporting Recovery from Trauma (Information Sheet, Australian National University, 2013) 1-2 in Bugmy Bar Book Committee, 'Refugee Background' in Bugmy Bar Book (online, July 2021), [20] ('Bugmy Bar Book').

[4] Julia Huemer et al, 'Mental Health Issues in Unaccompanied Refugee Minors' (2009) 3(13) Child and Adolescent Psychiatry and Mental Health in Bugmy Bar Book, [22].

[5] Kate E Murray, Graham R Davidson and Robert D Schweitzer, Psychological Wellbeing of Refugees Resettling in Australia: A Literature Review Prepared for the Australian Psychological Society (August 2008) 13-14 in Bugmy Bar Book, [35].

[6] DPP v Batsanes & Smith [2023] VSC 693, [52] (citations omitted).