Crown v Accused

2 No doubt your attacks occurred as a result of a combination of the fact you were extremely drunk and angry at the time, and that when in that state, you have a predisposition to react with extreme violence, as you did on this occasion. Your concerning criminal history for violence would suggest that you have not heeded the lessons from your past, and that you continue to represent a danger to the community. Protecting the community from you is undoubtedly one of the important sentencing considerations, which needs to take prominence in your case. Indeed, by virtue of the operation of the serious offender provisions of the Sentencing Act 1991 ('the Act'), I am required, in determining the length of the sentence of imprisonment to pass upon you, to regard the protection of the community from you as the principal purpose for which sentence is imposed.[1]

3 The maximum penalty for murder is imprisonment for life.

4 Murder is a standard sentence offence, with a standard sentence of 25 years' imprisonment.

5 The maximum penalty for ICI is 10 years' imprisonment.

6 You and Mr Ring are both from South Sudan. At the time of these events, you were well known to each other. Your mothers were friends. Your attack upon Mr Ring and Ms Anyang occurred in an area abutting Errington Reserve, close to the St Albans Community Centre ('the Community Centre'). This was a location at which members of the local community used to meet to socialise, including Mr Ring.

7 On the afternoon and evening of 30 December 2022, a group of people gathered to drink and socialise at some park benches at the side of the oval at Errington Reserve. The area in which the people gathered was captured on a CCTV camera positioned at the community centre. People came and went during the evening, including you and your girlfriend Nynakok 'Koko' Mongrag ('Ms Mongrag') and Mr Ring and Ms Anyang. At around 10.12pm, you had an interaction with Mr Ring, in which you can be seen to take a silver foil bag, presumably of wine, from the ground underneath the park bench upon which Ms Anyang and others sat, before Mr Ring approached you, took the silver bag from you and walked away from the group.

8 Later at around 10.41pm, there were six people remaining at the benches, including you and Ms Mongrag, Mr Ring and Ms Anyang. At that time, you began to verbally abuse Mr Ring and another man, calling them 'gay' among other things. Ms Anyang responded that you could not just come there and verbally abuse people. Ms Anyang then got up from the bench, and your verbal altercation with her quickly escalated into a physical altercation, when you stood and thrust your chest and shoulder into Ms Anyang's body, and she responded with a two handed shove to your chest. Ms Anyang then grabbed the top of your t-shirt and held it in a clenched fist, with her arm outstretched away from her body, while the two of you moved around and appeared to speak to each other for roughly 10 seconds. Ms Anyang recalled that a lot of words were used during that time, but she could not remember what was said between you both. You threw a punch or strike at Ms Anyang's head and she attempted to retaliate. The fight was then quickly broken up by Mr Ring and another man, both of whom had been sitting on the park bench since the altercation began.

9 After taking some steps away from the group, you took off your shirt and then appeared to summon Ms Anyang toward you. Mr Ring placed himself between you and Ms Anyang, as she made to move towards you. While you then took some initial swipes at Mr Ring, and showed visible signs of intoxication from stumbling, Mr Ring kept his hands by his sides, other than to remove your hands from himself or Ms Anyang.

10 At about 10.45pm, you threw a few blows at the face of Mr Ring, who responded by defending his face, and attempting to bear hug you. You pulled away from him, and then grabbed, with some force and against her obvious protestation, a knife from the handbag of Ms Mongrag, who was standing nearby. Both Mr Ring and Ms Anyang tried to restrain you in the moments afterwards; Mr Ring grabbed you from behind while Ms Anyang, who was facing your front, tried to grab one of your hands. At the same time, you appeared to use the knife to repeatedly thrust towards Mr Ring's right thigh.

11 In the struggle which followed, Mr Ring released you from behind, and you faced both Mr Ring and Ms Anyang. You slashed the knife in the direction of Ms Anyang, and struck her neck, causing her to grab her neck and stagger backwards. She did not see that you had a knife until after she had been cut by it. She then observed Mr Ring trying to grab the knife from you. Meanwhile, you turned on Mr Ring, and in two flurries which were less than twenty seconds apart, you stabbed towards his lower abdomen several times.

12 In the immediate aftermath of these crimes, you were involved in further altercations with Mr Ring and Ms Anyang, who had both separately run to a nearby car and obtained items which they attempted to use as weapons to strike you. At the time, Ms Anyang was not aware that Mr Ring had been stabbed. You may have delivered a further strike to Ms Anyang's neck with the knife during this altercation. You then ran away from the scene. At 10:48pm, Mr Ring is captured by another CCTV camera falling to the ground; he was seen by Ms Anyang to land on his head.

13 Ms Anyang and others quickly came to Mr Ring's aid, but he was unconscious. Some teenagers who were near the scene, and had been with the group earlier in the night, ran to Mr Ring's aid, and then to a neighbouring McDonalds. The manager of the McDonalds attended the scene with a first aid kit, and called an ambulance. Paramedics attended and transferred Mr Ring to Sunshine Hospital, where he was pronounced dead at 12.08am on 31 December 2022. The police who attended the scene that night also took photographs of the injuries to Ms Anyang's neck.

14 The evidence of Dr Baber, the forensic pathologist who performed the autopsy on Mr Ring, was that he sustained a stab wound to the left abdomen which pierced the left iliac vein and punctured the front wall of the left iliac artery, penetrating 10 centimetres from the surface of the skin; and that he also suffered a skull fracture on the left side of the head. She opined that the cause of death was the stab wound to the abdomen, and that the head injury was secondary to that. Dr Baber also explained that the injuries to the abdomen suffered by Mr Ring would not have resulted in immediate death, or free-flowing blood splatter, as might be the case with injury to the femoral artery, for example. In Dr Baber's opinion, the fatal stab wound was caused by at least mild to moderate force.

15 You were arrested a few days after the incident, on 2 January 2023, in Mernda.

16 Two trials were held in your case. The first trial commenced on 24 March 2025. You pleaded guilty to manslaughter in front of the jury, and to the charge of ICI, but not guilty to murder. On 3 April 2025, after being unable to agree upon verdicts after some days of deliberation, the first jury was discharged without verdict. The second trial commenced the same day, and again you pleaded guilty to manslaughter and ICI but not guilty to murder. The trial proceeded to its completion on 9 April 2025, when the second jury returned a verdict of guilty of murder.

17 At both trials, the charge of murder you faced was put alternatively as an intentional murder, and a reckless murder. The jury verdict means that the jury were unanimously of the view that the prosecution had proved one of the four states of mind necessary for murder in the circumstances, that is, that at the time you stabbed Mr Ring, you:

ii. intended to cause really serious injury to him; or

iii. knew that your act would probably kill him; or

iv. knew that your act would probably cause really serious injury to him.

18 Unanimity as to the precise state of mind you possessed at the time of the fatal stabbing was not required. Therefore, some jurors may have been satisfied as to an intention on your part to cause death or really serious injury, and others may have been satisfied only as to a reckless state of mind. In those circumstances, the parties were in agreement that I should sentence you on the basis of a reckless murder. They were also at one, however, that the question whether your murder was intentional or reckless does not, of itself, determine the seriousness of your crime. That should be judged on all of the circumstances. I agree that that is the correct basis upon which to sentence you.

19 Your personal circumstances were set out in considerable detail in the report of Guy Coffey, Clinical Psychologist, tendered on your behalf during the plea,[2] and summarised by Mr Smallwood, who appeared with Mr Cleveland, during the plea hearing. The report of Mr Coffey was a very detailed one, and was prepared by him following no fewer than five interviews of you conducted over a period in excess of nine hours. Mr Coffey is to be commended for his thoroughness.

20 You were born in Khartoum, South Sudan on 6 December 1996, and were hence 26 at the time of the events, and are now 28 years of age. You were the third of seven children. Your family was of Dinka ethnicity and the Christian faith. You have few memories of your early life in Khartoum, and, fortunately, no memories of the civil war which was then going on. You and your siblings travelled with your mother to Cairo when you were five. Your father followed a year later. You attended Arabic schools and remember hostility towards you and your family from Egyptian people. Your family gained refugee status and were resettled in Australia through Australia's Refugee and Humanitarian program on 10 December 2004. The family lived initially in Sunshine and then in Braybrook. You attended a language centre in Braybrook for 12 months where you acquired spoken English. After you had completed grade 3 in Braybrook your family moved to St Albans, where you commenced grade 4. You and your siblings were the only children of African background at the school in St Albans, and you experienced racially motivated bullying. You began to get involved in fights, sometimes to protect your younger siblings. You were a distractable student and struggled academically, and by the completion of primary school, your literacy and numeracy skills were below your year level.

21 For most of your primary schooling, your home was harmonious and supportive, although towards the end of primary school, your parents began to fight more often and were occasionally physically violent towards one another.

22 You completed year 7 at Catholic Regional College, St Albans, but in year 8, you were expelled for fighting, which you claim was triggered by racial denigration from other students.

23 In 2012 you commenced year 10 at Brimbank High School. [3] During that year you were charged in the Children's Court with offences and placed on a youth supervision order. You were expelled from school shortly afterwards, and your life became somewhat directionless as you were neither working nor studying. You had troubles at home as well, and at one point, your parents threatened to send you to Africa. As a 15 and 16 year old, you spent long periods away from home, staying with friends. Your life was unstable and you were involved in a number of violent incidents. You made a suicide attempt, were stabbed in a fight, witnessed a friend nearly die after himself being stabbed, and were assaulted with a baseball bat, requiring hospitalisation.

24 You were involved in further offending which was dealt with in the Children's Court. By the age of 17, you were using cannabis daily and abusing alcohol frequently. You told Mr Coffey that intoxication produced, in you, a temporary state in which you felt some optimism and belief in yourself.

25 Of course, I do not take the prior convictions from your youth into account in any way adverse to your interests, in sentencing you for these offences. I note these matters only to illustrate the tumultuousness of your young life up to the time of this offence.

26 In 2015, you commenced an apprenticeship as a bricklayer. You worked as a brickie's labourer for six months, which ended when a shoulder injury sustained in the stabbing incident to which I referred earlier forced you to stop working. That period of employment remains the longest period of employment you have had.

27 In 2016, you moved to Castlemaine to live with your father, as a condition of a grant of bail you were under. You received a short term of imprisonment for offences including making a threat to kill. In March 2017, when you were 20, you committed offences including intentionally causing serious injury. You received a sentence of 4 years' imprisonment with a minimum of 2 years 4 months. You spent four years in custody, having been denied parole because you did not complete violent offender and alcohol and other drugs courses.

28 You were released in February 2021. You returned to live with your mother and siblings in St Albans. Your transition to the community was difficult. The anxiety which you experienced in prison remained with you. You were unable to find employment. You began to drink heavily and smoke cannabis. Further offending ensued.

29 Later in 2021, you became romantically involved with Sophia Daale-Setiady ('Sophia'), a law student who lived in an apartment in the CBD. You moved in with her, before the two of you moved in with your family in St Albans. In early 2022, Sophia learned she was pregnant.

30 In 2022, your drinking began to dominate your life. In April 2022, after a night of drinking with friends, you drove a vehicle without a licence and caused a collision, resulting in convictions for dangerous driving and failing to render assistance. You received a gaol term. While you were in custody, Sophia gave birth to a son while she was staying with her parents in Hobart. Upon your release, you lived with Sophia and your child in the CBD. Before long, you returned to your excessive alcohol consumption.

31 You have a significant and concerning criminal history encompassing offences of violence, dishonesty offences, serious driving offences, and bail offences. Most seriously, on 24 November 2017, you were sentenced by Judge Lewitan in the County Court to imprisonment for 4 years with a minimum of 2 years 4 months for an offence of intentionally causing serious injury ('ICSI').[4] That offence arose from a situation in which you and others, including your victim, were drinking and socialising on the forecourt outside the State Library in Swanston Street, Melbourne, on 8 March 2017. Affected by Xanax and alcohol, and responding to a perceived slight by the victim to a female member of the group, you punched the victim to the head, causing him to fall to the ground, where he was then punched and kicked by your two co-offenders. After the victim had been rendered unconscious on the ground, you walked up to him and stomped on his head. He sustained a fractured nose and cheekbone, and an injured eye socket which exposed him to an increased risk of glaucoma and loss of vision in the future. Judge Lewitan described your crime as 'very serious, shocking and disturbing'. [5] Your offending occurred less than a month after you were placed on a community correction order ('CCO') for offences including aggravated burglary, ICI and making a threat to kill. Amongst the material before her Honour was a report of a psychologist Carla Lechner, who stated that you presented as a high risk of future violent behaviour, and a pre-sentence report which noted that a common theme of your pattern of offending up to that time was your continual use of violence when substance affected. The pre-sentence report had been sought for the purpose of assessing your suitability for a youth justice centre ('YJC') disposition. You were found to not fit the criteria for a YJC order.

32 At the time of your current offending, you were on a CCO for a range of offences, including unlawful assault and recklessly cause injury; and you were also on bail.

33 Five victim impact statements were placed before the Court. These were by:

• Nyaiek Anyang - Partner of Mr Ring, and victim of ICI

• Lydia Manongwa - Mr Ring's former wife and mother of one of his daughters

34 Ms Manongwa read her statement to the Court. All other victim impact statements were read aloud by the prosecutor.

35 Mr Smallwood, in his submissions, correctly described the victim impact statements in this case as painting a very clear and tragic picture of the grief, trauma and hardship which flowed from your actions.

36 Ms Anyang's statement describes the heartbreak and anguish caused by the loss of her partner, as well as the loss of self-esteem she has suffered as a result of the scars to her neck caused by your attack. These are a constant reminder to her of the terrible events of that day. She has withdrawn from her life, and things just don't feel the same. The grief and trauma have impacted her ability to focus on work. In addition, she found out she was pregnant after the death of Mr Ring. She can see his spirit in her daughter, but this also pains her because it serves as another reminder of what she has lost.

37 Awatif Ring, the mother of Mr Ring, describes in her statement the profound impact that the death of her much-loved son has had on every aspect of her life. As she describes it, the joy and purpose that once defined her existence have faded away, to be replaced by grief and despair. The statement clearly illustrates a mother's love for a kind, loving and decent son.

38 Lydia Manongwa, in her victim impact statement, speaks of the terrible effect the death of Mr Ring has had upon her and also their daughter. She tried to shield her daughter from the true facts of what had happened, but eventually was forced to tell her the truth. As Ms Manongwa explains it, the death of Mr Ring not only devastated the family, but also tore apart the community, in view of the previously close connection between Mr Ring's family and yours.

39 Those three victim impact statements as well as those by the cousin and a close friend of Mr Ring all serve to illustrate the devastating, far-reaching effects of your crime upon the family and loved ones of Mr Ring.

40 I take into account, as I am required to do pursuant to s 5(2) of the Act, the contents of the victim impact statements.

Your plea of guilty to manslaughter and to ICI, and the question of remorse

41 In some cases, a plea of guilty by an offender facing a charge of murder to the lesser offence of manslaughter would not be mitigatory, and would be of no significance when it comes to sentencing the offender for the crime of murder. The plea to the lesser crime could be seen as no more than an opportunistic attempt to secure an acquittal on the charge which represents his or her actual criminality. This is not such a case, in my view. As submitted by Mr Smallwood, through your plea of guilty to manslaughter in front of the jury, you did admit having unlawfully killed Mr Ring, and accepted responsibility for that fact. And your trial was conducted on a very narrow issue, namely, the question whether, at the time you fatally stabbed Mr Ring, you had the necessary murderous intent; that is, one of the states of mind to which I referred at [17]. This narrow focus of the trial had a utilitarian benefit associated with it. Many witnesses who might otherwise have been called, were the issues in dispute more broad, did not need to be called. Cross-examination of those witnesses who were required to be called was brief. Your defence was conducted very economically on your behalf by Mr Smallwood. Much less court time was consumed than might otherwise have been necessary as a result.

42 For the reasons I have outlined, I do take into account in your favour your plea of guilty to manslaughter, albeit that it did not reflect the extent of your criminality as found by the jury. I also accept that your plea of guilty is indicative of the fact that you do feel sincere remorse and regret for your actions in stabbing and killing Mr Ring. There are further indications of that in some of the statements made by you to Mr Coffey. You told him that Mr Ring was a part of your community, and a good person who deserved to be safe. You acknowledged the terrible consequences caused by you to his family and the broader community.

43 As for your plea of guilty to the charge of ICI, I accord it the full weight to which it is entitled, including as a clear indication of the remorse you feel for having stabbed or slashed Ms Anyang to the neck, itself a serious criminal act.

44 In my view, the remorse you feel for your actions, along with your apparently sincere desire, expressed to Mr Coffey and to your counsel, to turn your life around, and live a law abiding life in future, will be important factors going towards your prospects of rehabilitation.

45 Mr Smallwood, in very thoughtful fashion, consistent with his overall conduct during the trial and plea, submitted that your troubled personal history is relevant to the assessment of your moral culpability, particularly by virtue of the relevance of those circumstances to your commencement of the consumption of alcohol when you were 14. He acknowledged that you did not have any exposure to violence or other terrible events in Sudan when you were there as a young child, and that whilst you did live in a difficult environment in Egypt and were exposed to racism there and in Australia, you were not exposed to violence in your family when you were a child, and have always had a supportive family behind you. Mr Smallwood submitted that notwithstanding the absence in your background of some of the features present in other cases where the principles in Bugmy v The Queen ('Bugmy')[6] have been held to apply and have had 'more work to do',[7] the principles are enlivened in your case. He referred to some statements of the Court in Marrah v The Queen[8] in support of his submission. He accepted that the extent of your childhood deprivation or disadvantage was not as extreme as is often observed in this Court, and that the impact of the Bugmy principles would not be as significant as would often be the case. He submitted:

it's really a question of weight for your Honour. A personal history of an offender will generally always be relevant in the sentencing task. It's a question of how and to what weight it should be given. [9]

46 Mr Smallwood submitted that the result of the application of the principles in Bugmy should be a reduction in your moral culpability 'to some extent',[10] but he acknowledged your moral culpability would still be high, due to the aggravating features of your offending.

47 Mr Shaw, who appeared for the Crown, submitted that although in recent times the Bugmy principles have been extended, and do not require as a precondition for coming into effect, the sort of severe deprivation and terrible upbringing experienced by Mr Bugmy himself, that 'doesn't mean that any sort of unpleasantness in one's life as a young person means the Bugmy principles are invoked'.[11] He questioned whether the principles are enlivened in this case, but submitted that if they are, it would be to a very limited extent. He went on to acknowledge, however, that that would not mean that the circumstances of your background should not be taken into account, because they help to explain, to some extent, how you became the adult that you are.

48 In Bugmy, the High Court dealt with an appeal in respect of an offender, charged with serious violent offending committed in prison, who had been described by the sentencing judge as 'an Aboriginal man who grew up in a violent, chaotic and dysfunctional environment'.[12] The Court expressed in two different ways the potential relevance of childhood deprivation to the assessment of moral culpability. First, the Court observed:

The circumstance that an offender has been raised in a community surrounded by alcohol abuse and violence may mitigate the sentence because his or her moral culpability is likely to be less than the culpability of an offender whose formative years have not been marred in that way.[13]

49 This was described by the Court of Appeal in DPP v Herrmann ('Herrmann')[14] as the 'general approach' in Bugmy.[15]

An offender's childhood exposure to extreme violence and alcohol abuse may explain the offender's recourse to violence when frustrated such that the offender's moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender.[16]

51 This was described by the Court in Herrmann as the 'specific approach' in Bugmy.[17]

52 The Court in Herrmann made it clear that whilst evidence to establish a nexus or realistic connection between the offending and the relevant background circumstances will be necessary before the specific approach in Bugmy will apply, the application of the general approach in Bugmy does not depend on proof of a nexus.

53 As I understood it, it was the general principle in Bugmy upon which Mr Smallwood relied in this case. I did not understand him to place any reliance upon the specific approach.

54 In Sabbatucci v The Queen,[18] the Court noted:

It will always be a matter for evaluation by the sentencing court whether the circumstances of disadvantage relied on warrant the conclusion that the offender should be viewed, on that account, as less morally blameworthy than another person committing the same offence who did not have the same deprived background. Such a conclusion does not, of course, depend upon the court first being satisfied that the circumstances in question constitute 'profound disadvantage' or 'profound deprivation'. It will be a question of fact and degree in every case.[19]

55 In Newton v The King ('Newton'),[20] the Court, in the course of finding that the sentencing judge had erred in not allowing some reduction in moral culpability to the appellant stated:

The fact that other offenders in other cases may have been subjected to more significant or more profound childhood deprivation does not mean that the appellant's childhood deprivation should not have been properly considered as having the potential to reduce the appellant's moral culpability in the general way described in Bugmy. On the uncontested material tendered on the plea, the appellant was entitled to some (albeit a modest) reduction in moral culpability without the need to establish any causal link between his childhood deprivation and his offending.[21]

56 In some cases, depending on the circumstances, the reduction in moral culpability accorded to an offender may be significant. As was made clear in Newton, however, in some cases in which the general principle in Bugmy is enlivened, the moral culpability of the offender will be moderated in 'a limited way',[22] or 'at least to some modest degree'.[23]

57 Whilst I acknowledge that, as made clear by the Court in Newton, it is not a matter of a judge comparing the circumstances in a particular case with those which were present in Bugmy, and then deciding, in a binary way, whether the Bugmy principles do, or do not, have application, the fact is that the proven history and circumstances of your upbringing are of nothing like the same order as those which were considered by the courts in Bugmy and Herrmann, and, sadly, are commonly seen in this Court.

58 There would be a real question whether the general principle in Bugmy would be properly enlivened by the circumstances of this case.

59 Were I to reach the conclusion that the Bugmy principles are not engaged, that, of course, would not mean that your background would cease to be relevant. It is an important part of your story. In particular, your excessive and problematic consumption of alcohol commenced at quite a young age, in the context of the circumstances of your childhood to that time. Your problem with alcohol was intrinsically linked with your background, and that problem has presented an ongoing issue because you have shown yourself unable to control your behaviour when intoxicated. It is also undeniable that the displacement and racism you experienced throughout your childhood had a profound impact on your development.

60 Were the Bugmy principles to be enlivened in your case, the result would be only a modest reduction in moral culpability. As conceded by Mr Smallwood, your moral culpability would remain high. And as also conceded by Mr Smallwood, the issues about your background may bring into play countervailing considerations concerning protection of the community.

61 In the end, with some reluctance, I have concluded that the general principle in Bugmy has some application in your case. I think that your personal history is an important matter in the sentencing calculus, and I am prepared to accept that your moral culpability should be considered to be reduced to a modest extent as a result. Having said that, I am satisfied that your moral culpability for your offending remains high.

62 It was accepted on your behalf by Mr Smallwood that your offending was 'outrageous',[24] and that the aggravating features of your crime pointed to by the prosecution in its written outline are all present and required to be taken into account. These were:

• The fact that at the time you attacked him, Mr Ring was trying to defuse the situation, as opposed to acting in an aggressive fashion;

• You escalated the confrontation by arming yourself with a knife;

• Ms Anyang was unarmed at the time you injured her;

• You were on a CCO at the time of your offending; and

• You were also on bail at the time of your offending.

63 On the other hand, Mr Smallwood, without seeking to minimise the seriousness of your offending, submitted that the murder you committed can be distinguished from more serious examples of the crime. The fatal injury involved a single stab wound to the abdomen inflicted with mild to moderate force. The offending was not pre-meditated, and was not prolonged. It was not aggravated by any post-offence conduct.

64 Every murder is serious, and Mr Smallwood was correct to describe your offending as outrageous. You initiated a violent confrontation with Ms Anyang and Mr Ring, and then escalated the confrontation by resorting to the use of a dangerous weapon in circumstances where you were the sole aggressor. You then made concerted efforts to stab the innocent peacemaker, Mr Ring, and succeeded in doing so, to tragic effect. You also repeatedly slashed or stabbed at Ms Anyang, aiming at her head and neck area. It is fortunate that no more serious injury was sustained by her, but your attack upon her was itself a serious one.

65 I accept that you were substantially affected by alcohol and drugs at the time. This is not a mitigating feature, albeit that it may have deprived you of normal self-control and composure. You claim to have limited memory of the immediate lead-up to the offending and no memory of the actual attacks you carried out. In light of the large amount of alcohol you claim you consumed, and the drugs you used, that may well be so, but of course, says nothing about your criminality. It does not take away from the voluntariness and intention of your actions, in any way. You made what could only have been the conscious decision to obtain the knife from the handbag of your girlfriend, and when you then wielded the knife, stabbing each of your victims, you must have known the substantial danger involved in those actions. Of course, the jury verdict means that at the very least, at the time you plunged the knife into the abdomen of Mr Ring, you knew that your act would probably cause him really serious injury. Furthermore, your plea of guilty to ICI is an acknowledgment of the fact that when you swung the knife at Ms Anyang, you intended to cause injury to her.

66 I accept that your murder of Mr Ring does not have some of the features present in more serious instances of the crime, but as acknowledged by Mr Smallwood, it was still a serious murder. And the offence of ICI to Ms Anyang was also serious.

67 As already noted, your moral culpability for your offending is high, notwithstanding your, at times, difficult background.

68 By reason of your 2017 conviction and sentence for ICSI, which I detailed at [31], you are to be sentenced as a serious violent offender for the crime of murder of which you have been convicted. This means that in determining the length of the sentence to be imposed upon you for that charge, I am required to regard protection of the community from you as the principal purpose for which the sentence is imposed, and in order to achieve that purpose, I am entitled to impose a sentence longer than that which is proportionate to the gravity of your crime considered in light of its objective circumstances.[25] Mr Shaw did not submit that a disproportionate sentence should be imposed in your case, and I will not impose a disproportionate sentence.

69 In addition, s 6E of the Act provides that the sentence I impose upon you for murder must, unless otherwise directed by me, be served cumulatively on any other sentence I pass upon you.

70 Finally, s 6F requires me to cause to be entered into the records of the Court the fact that you have been sentenced on the charge of murder as a serious offender.

71 There was a close temporal connection between your killing of Mr Ring and your causing injury to Ms Anyang. These stabbings occurred as part of a single course of violent conduct, albeit one in which there were two separate and distinct victims. The separate criminality involved in each crime requires that there be some cumulation between the sentence I impose for ICI and the sentence for murder. The presumption in s 6E would be of full cumulation. The principle of totality, on the other hand, would require that there be a degree of concurrency. As Mr Smallwood acknowledged, the totality principle cannot be applied in a way which would frustrate the serious offender legislation's requirement for cumulation.

72 I will order a degree of cumulation between the sentences I impose for the individual charges which will pay regard to the totality principle, so far as is possible, and properly acknowledge the separate criminality involved, and the fact that your offending had two separate victims, who must each be properly recognised. If it is necessary for me to do so, I will otherwise direct for the purposes of s 6E of the Act, to the extent necessary in light of the order as to cumulation which I will shortly make.

73 As your crime was committed after 1 February 2018, the standard sentence scheme applies to the offence of murder of which you have been found guilty. The standard sentence for murder is 25 years.

74 Pursuant to s 5A(1)(b) of the Act, the period of 25 years is the sentence for an offence of murder that, taking into account only the objective factors affecting the relative seriousness of that offence, is in the middle of the range of seriousness.

75 Section 5(2) of the Act requires me to have regard to a number of specified matters in sentencing you. One of them, pursuant to part (ab), is the standard sentence. In addition, s 5B(2)(a) requires me, in sentencing you, to take the standard sentence into account as one of the factors relevant to sentencing.

76 The standard sentence scheme was the subject of consideration by the Court of Appeal in the decision of Brown v The Queen ('Brown').[26] The Court stated:

For the most part, the provisions are clear and the approach required is not in dispute. The key new requirement is that a judge when sentencing for a 'standard sentence offence' must 'take the standard sentence into account as one of the factors relevant to sentencing'. This requirement:

• is to be treated as a 'legislative guidepost', having the same function as the maximum penalty;
• does not affect the established 'instinctive synthesis' approach to sentencing;
• does not require or permit 'two-stage sentencing'; and
• does not otherwise affect the matters which the court may, or must, take into account in sentencing.[27]

77 I have had regard to the standard sentence for murder as one of the matters to be taken into account in arriving at the appropriate sentence for you on the charge of murder by the process of instinctive synthesis. In doing so, I have applied the law as explained in Brown.

78 Section 5B(4) of the Act requires a court that sentences an offender for a standard sentence offence to state its reasons for imposing that sentence. Sub-section (5) requires me to refer to the standard sentence for the offence and explain how the sentence imposed by me relates to that standard sentence.

79 The applicable law does not require me in complying with the requirement of s 5B(5) to 'attribute particular mathematical values' to matters regarded by me as significant to the formation of a sentence that differs from the standard sentence.[28] It does, however, require me to 'identify fully the facts, matters and circumstances' which bear upon the judgment I have reached as to the appropriate sentence.[29] I have endeavoured to do that in some detail during these reasons for sentence.

80 In arriving at the sentence I will shortly pass upon you, I can indicate that I have taken into account all of the matters I am required to consider under s 5(2) of the Act, including the standard sentence for murder. I have taken into account any mitigating factors which apply to your crime. By the process of instinctive synthesis, I have arrived at the sentence I will announce.

81 The requirement in s 5(2)(b) of the Act for me to have regard to current sentencing practices remains, but s 5B(2)(b) dictates that I:

must only have regard to sentences previously imposed for the offence as a standard sentence offence in relation to the sentencing for which this section applied.

82 This change in the law does not preclude me from having regard to sentencing principles established in previous cases.[30]

83 I have had regard to sentences passed in other cases of murder since the standard sentence regime commenced in arriving at the appropriate sentence for you.

84 I make it clear that no individual sentence passed in any other case is in any way a precedent for the sentence I must pass.

85 If I sentence you to a head sentence of 20 years or more, I am required by s 11A(4) of the Act, unless I consider it is in the interests of justice not to do so, to fix a non-parole period of at least 70 percent of the head sentence. The head sentence I impose will be greater than 20 years.

86 No specific submissions were addressed to me by defence counsel in respect of s 11A(4) of the Act.

87 Taking into account all of the circumstances of this case, I do not consider that it would be in the interests of justice for a non-parole period of less than 70 percent of the head sentence to be fixed. Indeed, the non-parole period I will fix will exceed 70 percent of the head sentence. The assessment of the length of a non-parole period will depend on all of the circumstances of each case. I indicate that I have considered the magnitude of the non-parole period I will shortly announce relative to the head sentence. Whilst the law makes it clear that there is no 'usual' non-parole period for a given head sentence,[31] I am conscious of the fact that the non-parole period I will set will represent a higher proportion of the head sentence than would sometimes be the case. Nevertheless, I have decided that the non-parole period I will impose is the minimum term that I have determined that justice requires you to serve, given all of the circumstances, before being eligible for parole.[32] It will still provide for the potential of a lengthy period of supervision in the community on parole, should you qualify for parole at the end of your minimum term.

88 As I have already indicated, your murder of Mr Ring is a serious example of a serious offence, and your infliction of injury upon Ms Anyang is also serious. These were two blameless victims who did nothing to deserve your attacks upon them. Mr Ring, in particular, was at all times a peacemaker, trying his best to protect his partner, and have you desist from your violence directed towards the two of them. It is disturbing that for so little reason you saw fit to escalate a minor disagreement into a fatal confrontation, by the introduction of a knife. You were under no threat to your safety and your actions were completely uncalled for. You took away the life of a much-loved and valued member of the community. You removed him from the life of his partner, his then unborn child, and the broader community of family and friends who loved him, including another child. It is a tragedy for which you are fully responsible. As for your attack upon Ms Anyang, to slash a person repeatedly to the neck with a knife is very dangerous conduct which carries with it the risk of catastrophic consequences. Ms Anyang, as well as seeing her partner and the father of her child stabbed to death in front of her, has been left with physical injuries which will always serve as a reminder to her of what happened that night.

89 As I have already noted, because of your status as a serious violent offender due to your previous sentence of imprisonment for ICSI, I am required in sentencing you to regard the protection of the community from you as the principal purpose for which sentence is to be imposed. In the absence of that statutory imperative, there is no doubt that protection of the community would have loomed large in this case in any event. You have a concerning history of convictions for crimes of violence, often fuelled by excessive alcohol consumption. When you were sentenced by Judge Lewitan eight years ago, you already were recognised as a person for whom violence was a serious problem, especially when you were affected by alcohol or other substances. You presented to a psychologist as constituting a high risk of future violent behaviour, and a pre-sentence report commissioned for the purpose of assessing your suitability for YJC noted that a common theme of your offending to that time was your continual use of violence when substance effected. While I make it clear that I have not relied on those earlier assessments as the sole basis for the conclusion on your current risk of future violence, this history certainly informs my current assessment. Sadly, it seems that the significant term of imprisonment you served under that previous sentence did not have the desired effect. Your problematic drinking continued upon you release, as did your proclivity to engage in violent acts when substance-effected. It is obvious that protection of the community is an important sentencing consideration in your case, and as I am required to do, I consider it to be the principal purpose.

90 Other important sentencing considerations in your case are just punishment, denunciation, general deterrence and specific deterrence.

91 You must be punished in a way which reflects the seriousness of your crime and amounts to an appropriate response to it. The sentence must communicate in clear terms this Court's condemnation and disapproval on behalf of the community of your violent and senseless criminal conduct which took away the life of an entirely innocent man. His life was precious to his family and friends and to the community in which he lived. Notwithstanding your drunkenness at the time, and the circumstances of your upbringing, you acted in the clear knowledge of the wrongfulness of your conduct. Your crime was not planned in any way, but it was nonetheless vicious and entirely uncalled for.

92 In respect of general deterrence, the sentence I pass must bring it clearly home to any person who might be minded to carry out an attack upon another person, with the use of a knife or some other weapon, that if such conduct results in the death of another, or injury to another, it will be met with very strong punishment. You must also be specifically deterred from any future violent actions to which you may be disposed. Your criminal history amplifies the need for you, personally, to be deterred.

93 As for rehabilitation, I do not ignore that as a sentencing consideration, and indeed, I consider it to be of some significance in your case. As I indicated earlier, notwithstanding your plea of not guilty to the charge of murder, and your significant criminal history, there are several positive features of your case which point at least to the possibility of future reformation. You did accept responsibility for the death of Mr Ring, and in the statements you made to Mr Coffey, you indicated feelings of remorse and a firm intention to turn your life around. You are fortunate to have the support of your family as you seek to do that, including your partner Ms Daale-Setiady, who attended several days of the trial, and the plea hearing. By now you have a very clear understanding of the negative role that the abuse of alcohol and drugs has played in your life. You will never be able to go any distance down the path to rehabilitation without making a strong decision where alcohol and drugs are concerned. Furthermore, embracing the counselling and treatment which should be available to you in the prison setting to deal with your problems, including your risk factors for future violent offending identified by Mr Coffey, will be critical to your prospects of rehabilitation. As things currently stand, it is difficult to see those prospects as being good, but nor are they by any means hopeless.

94 In arriving at the appropriate sentence for you, I have, as I indicated earlier, had regard to your difficult background, and the other matters in mitigation relied upon by your counsel. In light of those factors, I have decided upon sentences - both the head sentence and the non-parole period - which are shorter than they might otherwise have been in light of the seriousness of your offending and your serious criminal history.

95 Malwal Aweng, for the murder of Myek Ring (Charge 1), you are sentenced to be imprisoned for 24 years.

96 For intentionally causing injury to Nyaiek Anyang (Charge 2), you are sentenced to be imprisoned for 3 years.

98 I order that 1 year of the sentence on charge 2 be served cumulatively upon the sentence on charge 1.

99 The total effective sentence is therefore 25 years' imprisonment.

100 I fix a period of 19 years during which you will not be eligible to be released on parole.

101 I declare a period of 1019 days up to and including yesterday, 16 October 2025, as being a period already served under this sentence. I direct that the fact of the making of that declaration and its details be noted in the records of the Court.

102 I indicate pursuant to s 6AAA of the Sentencing Act 1991 that, but for your plea of guilty to the charge of ICI, I would have imposed a sentence of 4 years' imprisonment on that charge.

103 You have been sentenced as a serious violent offender for a relevant offence, namely, the charge of murder. I direct that the fact that you have been sentenced as a serious violent offender on charge 1 be entered in the records of the Court.

[2] Report of Guy Coffey dated 22 June 2025; Exhibit 2.

[3] There was no material before the court about what you did in the period between you expulsion from and commencement at these schools.

[4] DPP v Malwal Aweng [2017] VCC 1709.

[6] (2013) 249 CLR 571 (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ) ('Bugmy').

[7] Transcript of Plea Hearing, DPP v Aweng (Supreme Court of Victoria, Tinney J, 4 July 2025) 36 ('Plea Transcript').

[8] [2014] VSCA 119 (Redlich and Tate JJA).

[12] Bugmy (n 6) [17] (citations omitted).

[14] [2021] VSCA 160, see [36] (Maxwell P, Kaye, Niall, T Forrest and Emerton JJA) ('Herrmann').

[18] [2021] VSCA 340 (Maxwell P and Emerton JA).

[20] [2023] VSCA 22 (Beach and Macaulay JJA).

[22] Bui v The Queen [2015] VSCA 313 [44] (Redlich and Whelan JJA).

[23] Berry v The Queen [2019] VSCA 291 [30] (Maxwell P and Niall JJA).

[24] Defence Outline of Sentencing Submissions, 24 June 2025 [10].

[26] [2019] VSCA 286 (Maxwell P, Priest, Kaye, T Forrest and Emerton JJA).

[28] Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 [29].

[30] R v Brown [2018] VSC 742 [111] (Champion J).

[31] Wallace v The Queen [2012] VSCA 114; (2012) 35 VR 520 [16] (Maxwell ACJ and Buchanan JA).

[32] DPP v Josefski [2005] VSCA 265; (2005) 13 VR 85 [43] (Maxwell P, Callaway and Chernov JJA).