DPP v Atem [2025] ACTSC 301

In addition, the offender has asked that two offences be taken into account at the time of sentencing. They are damage to property contrary to s 116(3) of the same Act and a threat to inflict grievous bodily harm contrary to s 31, again of the same Act.

There is an agreed statement of facts. The offender, who was born in South Sudan in 1998, and had an affiliation with other people of similar background, came to the victims house on 23 August 2024 where he broke some windows. The victim heard the windows breaking and came outdoors to investigate.

The victim noticed the offender had a knife. He picked up a brick. His mother told him to put the brick down. There was then a scuffle between the offender and the victim during which the brick was dropped. He was stabbed by the offender. He fell to the ground and was stabbed again, at least twice. I think the continued stabbing while the victim was on the ground is a significant and aggravating factor. The offender left the scene.

He had not seen the victim for about three years but he had benefited from the hospitality that the victim and his mother had provided over time.

The breaking of the windows is the damage to property offence. In addition to stabbing Mr Deng he also threatened, with his knife, to attack the victim’s mother. This is the threat charge.

At the time of the offending, according to his record of interview, the offender had consumed cannabis and speed.

The offender was arrested five days after the offences and has been in custody since. Any term of imprisonment will need to be backdated accordingly.

I have been provided with a medical report, by a Dr Russell Thomas dated 6 January 2025, which describes the injuries suffered by the victim. The report is based on material provided to the doctor. He never examined the victim.

Dr Thomas observes that the ambulance officers noted four stab wounds in the chest and abdominal areas. There were respiratory issues at the scene and during transport to hospital. It was necessary for there to be a needle decompression of a suspected pneumothorax.

The victim was admitted to The Canberra Hospital where an assessment revealed injuries to his right lung, his liver and a fracture of one of his ribs. In addition, there were abrasions to various parts of his body.

The injuries were classified as life-threatening and the victim underwent emergency surgery. He required three units of blood to replace blood that had been lost and follow-up by a multiple specialist team. The victim remained in hospital for six days and was then discharged home.

The victim has provided a victim impact statement. In the statement he includes these passages: “Since the assault, I have been plagued by a persistent sense of fear and vulnerability. My family and I now experience anxiety at the smallest sounds-whether it’s the creak of the gate opening or a knock at the door. What was once a peaceful and safe home has become a place where we constantly brace ourselves for the worst. The psychological toll has been overwhelming, not just for me, but for those closest to me who have had to witness my suffering. Physically, the injuries I sustained rendered me unfit for work and forced me to make repeated visits to Canberra hospital and local clinics. Daily tasks became painful and burdensome. Something as simple as sitting upright or picking up an object from the floor became a reminder of my limitations. The autonomy I once took for granted was suddenly gone.”

An attempt was made to prepare a pre-sentence report. The offender would not cooperate so no report was prepared. This is indeed unfortunate because pre-sentence reports play an informative role, including sometimes highlighting factors which a court might take into account sympathetically to the offender.

It was submitted on behalf of the offender that his lack of cooperation with the pre-sentence authorities was typical of refugee reaction to the police as described in the Refugee Background paragraph in the Bugmy Bar Book. The relevant passage actually refers to interactions with the police, but I accept that this could extend to any person apparently in authority.

The Refugee Background passage was also referred to in relation to the trauma that the offender suffered as a child in South Sudan. It appears he came to Australia with his father when he was about 10 years of age. The mere fact that a person is a refugee indicates a past of trauma and suffering. It is also well-known that the people of South Sudan, because of their religious beliefs, have suffered immeasurable persecution and discrimination.

There is a mental health assessment dated 17 September 2024. The offender was assessed by a Ms Byrne, a clinical psychologist. She interviewed the offender in prison. Ms Byrne does not go into detail but she notes a history of trauma as a child in Sudan.

Ms Byrne did not find any identifiable mental illness but she did recommend another assessment. She thought that he might benefit from some behavioural therapy designed to improve his coping skills and regulate his emotions.

The offender has a criminal history. In 2022, in New South Wales, he was convicted of having custody of a knife in a public place. No penalty was imposed. In Queensland the offender was convicted of sexual assault and stalking in 2023. This is history is indicative of previous violent offending, which is a factor to be taken into account.

I think it fairly obvious that there must be a sentence of imprisonment. I appreciate imprisonment is a last resort but the offence is so objectively serious that imprisonment is unavoidable. I have been provided with some comparable sentences, none of which share precisely the same facts. The ‘closest’ two are as follows.

In Jovanavic v The Queen [2015] ACTCA 29 the Court of Appeal found that a sentence of 10 years and nine months with a non-parole period of five years and six months was severe but not manifestly excessive. In that case the victim had been stabbed five or six times in the back.

Perhaps in contrast, in R v Chevalier [2018] ACTSC 236, the offender received five years imprisonment after stabbing the victim in the back in the course of an aggravated robbery.

The offending is above medium objective seriousness, in particular because of the persistence of the stabbing (after the victim fell to the ground) and the effect on the victim. The apparent absence of a motive does not assist the offender. He must of course receive some benefit for pleading guilty. There was obviously a strong case against him but nevertheless the plea was of some utilitarian benefit. I think a reduction of 20% is appropriate.

Walking around with a knife is a very unwise thing to do. It provides a means to inflict serious harm when a situation presents. Without the knife the kind of harm that Mr Deng suffered would have been much less.

The public needs to know that carrying knives should not happen. There is a significant need for public deterrence. The offender needs to know the same thing so that personal deterrence is also important. Unfortunately, the likelihood of reoffending has not been assessed in a pre-sentence report, but the nature of the offender’s criminal history tends to suggest that there is some likelihood.

Accepting, as I have said above, that imprisonment is inevitable, there is then a balancing act of factors which influence the term of imprisonment. Some factors suggest a long term of imprisonment, perhaps consistent with the Jovanavic matter, but others mitigate against taking such a course.

Taking all the relevant factors into account, and specifically including his background as a refugee, but also the effect on the victim and his family, as well as the two extra offences, I think a term of imprisonment of five years is appropriate which is reduced to 4 years after the 20% discount. The sentence should commence on 28 August 2024. Bearing in mind the offender’s age I think there are prospects for rehabilitation so I will set a non-parole period of 29 months.

Accordingly, I impose the following sentence:

The offender is sentenced to 4 years imprisonment to commence on 28 August 2024 and end on 27 August 2028.

The non-parole period is to commence on 28 August 2024 and end on 28 January 2027.