DPP v Majok [2017] VSCA 135

1 The respondent pleaded guilty to one charge of reckless conduct endangering life. That charge arose from an incident involving the respondent on 10 January 2015, as a result of which the victim, Kuach Deng ('Deng'), died. The respondent was sentenced to serve a Community Correction Order for a period of 18 months, with conviction, with conditions that he complete 100 hours of unpaid community work over a period of nine months, undergo health assessment and treatment and rehabilitation, and submit to judicial monitoring.[1]

2 The Director of Public Prosecutions has appealed against the respondent's sentence on the following three grounds:

Ground 1: The learned sentencing judge erred by finding that the fact the deceased was killed was not a matter to be taken into account in sentencing.

Ground 2: The learned sentencing judge erred by finding that the respondent lacked appropriate appreciation of the risks associated with engaging in a dispute with someone while standing on or beside a busy road at night.

Ground 3: The sentence imposed was manifestly inadequate in that the learned sentencing judge -

(a) Failed properly to reflect the gravity of the offending;

(b) Failed to give sufficient weight to the sentencing principles of just punishment, protection of the community, denunciation, general deterrence and specific deterrence;

(c) Failed to have sufficient regard to the maximum penalty for the offence;

(d) Gave too much weight to mitigating factors concerning the respondent.

3 The respondent was born on 26 November 1994, and at the time of the offence was 20 years of age. The victim, Kuach Deng, was 26 years of age at the time of his death.

4 The respondent had met Deng through his sister, Suzie Majok. At that time, she was living at premises in St Albans, which were located on the corner of Furlong Road. Ms Majok had first met Deng a relatively short time previously. At the time of the offence, Deng and three other associates were staying with Ms Majok at her home, and, according to Ms Majok, she and Deng were in a sexual relationship.

5 On Friday 9 January 2015, Ms Majok asked her guests, including Deng, to leave. She telephoned the respondent to complain to him that there were people in her house and she did not want them there. He told her that she should telephone the police or require them to leave.

6 On the following day, Saturday 10 January 2015, at about 7.00 pm, Ms Majok went to St Albans with Deng and one of the males from the group who were residing at her home. When they returned to her home, the rest of the group departed, except for Deng. Ms Majok and Deng were drinking alcohol together. Ms Majok considered that Deng was also affected by cannabis at the time. An argument occurred between Deng and Ms Majok, because, according to Ms Majok, Deng was asking her for sex, and she refused. As a result, Deng grabbed her arm and pushed her onto the bed, and she kicked him and yelled at him. At about that time the respondent arrived at his sister's home. He told Deng that he wanted everyone out of the house, and he took hold of the bags and luggage of the group who had been staying there, and put them outside. The respondent then departed the premises a short time later.

7 After the respondent departed the premises, Deng and Ms Majok continued to argue, and they were hitting each other and fighting for about 20 minutes. During that time Ms Majok telephoned the respondent. As a consequence, at about 11.15 pm, the respondent returned to his sister's house in company with two of his friends, James Murray and Ding Majak. When they entered the house, they noticed that Deng was obviously intoxicated. Ms Majok told Deng to leave, and Deng walked outside followed by Ms Majok, who was trying to fight him and kick him. The respondent intervened and stopped her from doing so. Mr Murray and the respondent then walked up to Deng, who was out on Furlong Road, and the respondent was heard to be arguing with Deng.

8 At that time Deng was walking backwards onto Furlong Road, which was very busy with motor vehicles. Mr Murray grabbed hold of Deng to pull him off the road, and he had to do that twice. Mr Murray then returned to Ms Majok's house.

9 The argument between the respondent and Deng came to the attention of a couple who lived nearby. When they looked out of their window, they saw a number of people, and they observed Deng and the respondent start to cross Furlong Road. The respondent and Deng crossed over to the north side of Furlong Road, and then walked back over towards the south side. While they were on the roadway, the respondent punched Deng with a closed fist to the side of the head, as a result of which Deng fell to the ground. The respondent then moved towards the footpath, leaving Deng on the roadway. A neighbour called out from her window to the respondent to pick Deng up. The respondent turned around, and the judge accepted that he was, at that point, returning to help Deng. However, and unfortunately, almost immediately after Deng was punched, and as the respondent was turning back to assist him, Deng was struck by a Toyota vehicle. The driver of the vehicle felt as if he had driven over a speed hump, and continued driving. The respondent chased the Toyota vehicle, and after being picked up by another vehicle, pursued the driver of the Toyota and waved him down. The respondent telephoned the police and an ambulance and returned to the scene.

10 Police and ambulance attended at the scene. When paramedics examined Deng, he was then in cardiac arrest. He was transferred to Sunshine Hospital, where, shortly afterwards, he was pronounced to be deceased. The respondent was spoken to at the scene and arrested, and when taken to Sunshine Police Station, he exercised his right not to answer questions put to him.

11 Subsequently, an autopsy was conducted on the body of Deng. The pathologist found that Deng had sustained multiple injuries, including abrasions to his head, torso and limbs, as well as a ruptured spleen and significant chest injuries. The pathologist concluded that the cause of death was the injuries sustained in the motor vehicle collision. A toxicological analysis detected ethanol in the deceased's blood to be at 0.23g/100 ml. Cannabinoids were also detected.

12 The respondent was initially charged with recklessly causing serious injury. Approximately ten weeks later, and due to the results of the autopsy, he was charged with manslaughter. In June 2015 he was committed for trial on that charge. In February 2016, a trial was commenced before the Supreme Court of Victoria in relation to that charge. The first jury, empanelled on the trial, was discharged after some days of evidence, and a subsequently empanelled second jury also had to be discharged after some days of evidence.

13 A third trial was scheduled for October 2016. However, in September 2016, following plea negotiations, the Director filed a new indictment charging the respondent with reckless conduct endangering life, to which the respondent immediately pleaded guilty. The conduct relied upon by the prosecution, to prove the endangerment element of the charge, were the actions of the respondent in punching Deng and causing him to fall to the ground on the roadway, and leaving him lying in the middle of a busy road in the dark.

14 The respondent was born in South Sudan. His father separated from his mother when the respondent was about two years of age. The respondent's mother subsequently remarried. After the separation of his parents, the respondent's family lived a fairly nomadic existence, moving back and forth between Egypt and Sudan. He commenced his education in Egypt, however when he was about six years of age, his family moved back to Sudan. After two years, the family returned to Egypt where he completed fifth grade.

15 At about that time the respondent's family came to Australia. The respondent attended language school, and then attended primary school in Sunshine West, where he completed Grade 5. At the time the family's living arrangements were difficult, and at one stage their house was vandalised, so that the family had to move into emergency housing. They lived in transitional housing in Keilor Downs for about three years, and then were granted public housing in Deer Park in 2013. During that disrupted period, the respondent continued with his education, and he completed Years 11 and 12 at Sydenham Catholic College. Although he passed Year 12, his reports indicated that there were limitations in terms of his intellectual functioning.

16 Upon completing Year 12, the respondent commenced studies at Swinburne University in 2014. He commenced a three year business course, but abandoned it one year later, shortly after Deng's death.

17 The respondent had one previous appearance in the Children's Court relating to two separate offences involving violence, although the judge characterised them as comparatively 'minor street offending' committed when he was very young. The respondent was released without conviction on an undertaking to be of good behaviour.

18 The respondent did have a subsequent criminal history. In September 2015, he was placed on an 18 month Community Correction Order on various charges, including affray, resisting police and using threatening words in a public place in 2013, driving offences in 2014, and a further affray committed in September 2015. The respondent did not fare well in complying with that order, but the judge accepted that that was due to the strained relationship between the respondent and the officer responsible for supervising the order.

19 On the plea, counsel for the respondent tendered a report from Mr Gene Bell, a court advice officer for Youth Justice, and a report by Ms Gina Cidoni, a consultant psychologist, each of whom had attended upon the respondent. Mr Bell also gave evidence.

20 In his report Mr Bell stated that the Youth Justice Central Courts Unit provided a system of supervision and support for youthful offenders on bail within the adult justice system. In that capacity, he had case managed the respondent from January 2015, when the respondent had been granted bail, and June 2015. He said that during that period he got to know the respondent well. He said that the respondent presented with features of concern relating to deteriorating mental health, and that the respondent had reported difficulty coping from day to day. In particular the respondent reported having been physically assaulted in his community as a result of the charges, including, on one occasion, being assaulted by three males who struck him to the ground using a bottle, and then hit and kicked him while he was on the ground. The respondent had refused to report the incidents to the police or to inform his family. Mr Bell considered that the respondent had significant mental health issues, but that he had a tendency to downplay them. Mr Bell commenced the use of an anger work book with the respondent, and the respondent responded well to that process, developing a better awareness of his own vulnerabilities, as well as developing skills to engage in meaningful discussion about his own health and needs. Mr Bell regarded the respondent as being immature for his age, but he had a positive level of engagement with Youth Justice.

21 In his evidence, Mr Bell stated that the respondent tended to become overwhelmed, and his stress levels had been exceptionally high due to his family circumstances. He had not coped well with the fact that Deng had died. As a result he was suffering from significant sleep difficulty and disturbance.

22 Ms Cidoni interviewed and assessed the respondent in November 2016. Intellectual testing was indicative of borderline function with a full scale IQ of 77, presenting significant challenges in terms of thinking clearly and rationally, problem-solving and considering the consequences of his actions. There were symptoms of post-traumatic stress disorder surrounding the offending, with intrusive recollections, arousal symptoms and impairment of academic function. Ms Cidoni noted that the respondent expressed remorse about the offending. She recommended counselling to address the respondent's anger management problem and his reduced problem-solving skills. Ms Cidoni expressed the view that imprisonment would be a greater burden on the respondent by reason of his mental health symptoms and his low intellectual functioning.

23 Based on that evidence, counsel for the respondent submitted that the judge should accept that a period of imprisonment would be more burdensome on the respondent. In mitigation, he relied on the respondent's early plea of guilty to the charge of recklessly endangering life, his indications of remorse, and his youth, both at the time of offending and at the time of sentence. Counsel also relied on the circumstances surrounding the incident, where the respondent was responding to problems involving his sister and Deng, and in which, although the respondent walked away from Deng after he had fallen, he quickly turned back to help him. Counsel also submitted that the respondent had good prospects of rehabilitation. As a result, counsel submitted that the judge should sentence the respondent to a Community Correction Order. In support of that submission, he relied on the judgment of this Court in Boulton v The Queen.[2]

24 In response, counsel for the prosecution submitted that the offence committed by the respondent was a serious offence, with a maximum sentence of 10 years' imprisonment. She submitted that it was inherently dangerous to punch someone to the head with enough force that that person went to the ground. Counsel accepted that the time period between the blow, and Deng being run over by a vehicle, was 'only a matter of seconds'. Counsel for the prosecution accepted that the judge was 'not dealing with this accused having caused the death of Deng'. She referred the judge to the victim impact statements, setting out the significant effect of Deng's death on his family, and stated:

... and of course your Honour will bear that in mind in a general sense although your Honour is constrained in some respects because of the offence that's ultimately being pleaded guilty to.

25 Counsel for the prosecution did not take substantial issue with the matters that were put in mitigation of sentence. She did however take issue with the proposition that the plea was made at the earliest opportunity. Counsel submitted that the judge should impose a term of immediate imprisonment.

26 In his reasons for sentence, the judge commenced by setting out the circumstances of the offending. His Honour noted that, in the lead up to the incident, the relationship between the respondent's sister and her guests at her home was at times volatile. In particular, on one occasion Ms Majok had been pushed to the ground and was bleeding from her nose. One of the males in the house had a knife. Further, it appears that the males had been staying at the house for two weeks, and had attacked Ms Majok when she tried to get them to leave. The judge accepted that in the lead up to the offence, the respondent had been told by his sister that incidents of that kind had been occurring.

27 The judge then set out the circumstances of Saturday 10 January 2015, which we have already outlined. As mentioned, the judge accepted that, before Deng was run over by the motor vehicle, the respondent had already turned around in order to assist him.

28 The judge noted that the offence had some serious features. Relevantly, his Honour stated:

While the fact that Deng was struck by a car and killed is not a matter to be taken into account in sentencing, it does nevertheless illustrate just how dangerous such behaviour can be. Further, by his plea of guilty, Mr Majok accepts that he foresaw that an appreciable risk of death was a probable consequence of his conduct. Finally, Mr Majok must have known that Deng was heavily affected by alcohol and, in consequence, less likely to have his wits about him or be as able to take a blow or avoid any danger created in consequence.[3]

29 The judge then referred to the victim impact statements which revealed that the crime had had a grave impact on Deng's family. His Honour stated:

At the same time, I must be careful not to allow the family's grief over their loved one's death to affect the sentence, as he is not to be sentenced for an offence involving causation of Deng's death.[4]

30 In mitigation, the judge also accepted that the respondent believed that Deng had behaved inappropriately and violently towards his sister, and that his sister was at that time in an hysterical state, so that it was likely that the respondent's emotions were 'running high ... which is likely to have clouded his judgment'.[5] In addition, the judge noted that 'only a matter of seconds after the punch' the respondent turned back to assist Deng, albeit too late as matters transpired. Overall, the judge thus assessed the respondent's offending as 'falling between the lower and middle range of seriousness for offences of this type'.[6]

31 The judge accepted, as a significant mitigating factor, that the respondent's plea of guilty was entered as soon as the Director accepted the plea offer made by him. His Honour was satisfied that the respondent was genuinely sorry for, and understood, the impact of his actions. In addition, the judge took into account the respondent's youth, which was relevant particularly because a younger person would have been less likely to appreciate the risk or consider consequences. In that respect, the judge noted Mr Bell's assessment that the respondent lacked maturity.

32 The judge referred to the respondent's limited previous criminal history, and also to his subsequent history, to the report and evidence of Mr Bell, and to Ms Cidoni's report. The judge was satisfied that the delay in the matter had caused considerable strain to the respondent, as, for most of the previous two years, he had been faced with a manslaughter charge. Finally the judge was satisfied that the respondent had reasonable to good prospects of rehabilitation. The judge considered that there was a better prospect that the respondent's rehabilitation would be enhanced through a Community Correction Order than an immediate jail sentence.

33 Before dealing with the individual grounds of appeal, it is convenient to commence with two preliminary observations.

34 The first observation relates to the first two grounds of appeal, which allege specific errors contained in the judge's sentencing remarks. Both of those grounds are directed to short passages extracted from the judge's reasons for sentence, the text of which occupied 18 pages of transcript, and comprised some 101 paragraphs.

35 In considering such grounds of appeal , it is important that the Court bear in mind the nature and function of sentencing reasons, and the manner in which they are expressed in Courts in this State. In that respect, the following passage, from the judgment of this Court in Zogheib v The Queen[7] are pertinent:

... it is important to bear in mind that, in this State, sentences are delivered orally in the second person, and are directed specifically to the offender who stands for sentence. Ordinarily, sentencing judges strive to express their reasons for sentence in terms that will be understood by the offender, and by other lay persons in court. In such a process, a degree of brevity, and, on occasions, of imprecision of expression, does intrude, because of the nature of the sentencing process. For that reason, it is important to construe sentencing remarks by a judge in their proper context, and not with an eye that is assiduous to detect error in the sentencing process. In that respect, the observations of Tadgell JA in his dissenting judgment in R v Groom, are apposite, namely, that a '... judge's sentencing remarks are not to be construed as if contained in a statute, a will or a deed'.[8]

36 In the present case, the judge expressed his reasons for sentence in the third person, rather than in the second person. Nevertheless, the principles stated by the court in Zogheib are equally applicable to an examination of the reasons for sentence in the present case.

37 The second preliminary observation that we make in this case relates to the report that was provided by the judge to this Court pursuant to s 316 of the Criminal Procedure Act 2009. The report, by the judge in this case, was, to say the least, with respect, tendentious and unhelpful. It did not comply with the principles, relating to such reports, that are well established in the authorities.[9] As we indicated at the commencement of the appeal, we shall disregard the report for the purposes of determining the appeal.

38 By ground 1, the Director contended that the judge erred by finding that the fact that the deceased was killed was not a matter to be taken into account in sentencing. That ground is based on a short passage contained in the judge's reasons, which we have set out above,[10] in a section of the reasons in which the judge outlined the serious features of the offence to which the respondent had pleaded guilty.

39 The Director contended that, in that part of his reasons, the judge indicated that the fact that Deng died had no relevance to the determination of the respondent's sentence. The Director submitted that the judge erred in that respect, as the death of a victim, following the reckless conduct of a person, is relevant to an assessment of the gravity of the offending. In support of that proposition the Director relied on a short passage contained in the judgment of Buchanan JA in R v Toms.[11] Counsel acknowledged that it would be erroneous for the judge to have sentenced the respondent as if he were guilty of an offence, an element of which was the causation of Deng's death. However, it was submitted that while there is a 'notional line' that may not be crossed, nevertheless there is 'territory within which to factor in the death prior to reaching that line'.

40 In response, it was contended on behalf of the respondent that ground 1 should not be accepted for two reasons. First, in the course of the plea hearing, the judge twice indicated that the offence, to which the respondent had pleaded guilty, was not an offence that involved the death of the deceased. On neither occasion did the prosecutor seek to challenge that indication by the judge, or to qualify it in any way. Secondly, it was submitted that the judge did not err in his consideration of the relevance of the death of Deng in determining the sentence of the respondent. It was submitted that the judge correctly took it into account as demonstrating how, in fact, the respondent's conduct did endanger the life of Deng in the circumstances in which it occurred.

41 Both submissions made on behalf of the respondent are correct. At no stage, during sentencing submissions, did the prosecutor submit that the judge should take into account the death of Deng as a matter that, in some way, reflected on the gravity of the offence. At an early stage in the plea, the judge indicated that the offence, to which the respondent had pleaded guilty, did not involve, as an element, causation of the death of Deng. The prosecutor did not challenge, or seek to qualify, that statement of principle by the judge. Further, in her reply submissions, the prosecutor stated:

Of course your Honour is not dealing with this accused causing the death of Deng but ultimately of course your Honour will recall on the last occasion the eloquent victim impact statement read out by the deceased's brother and there has of course been a significant effect on the family following the loss of their family member and of course your Honour will bear that in mind in a general sense although your Honour is constrained in some respects because of the offence that's ultimately been pleaded guilty to.

42 In those circumstances, it is clear that the prosecutor did not seek to contend, as is now submitted, that the judge should take into account Deng's death in determining the gravity of the offence committed by the respondent. Ordinarily, the Crown is not permitted to pursue an argument on a Director's appeal that was not made at first instance.[12] In the present case, no reason has been advanced for us to depart from that principle.

43 Further, and more significantly, there was no error contained in the manner in which the judge treated the death of Deng in his sentencing remarks. Plainly, as accepted by the prosecution, the respondent was not to be sentenced for having caused the death of Deng. To do so would be to sentence the respondent for an offence to which he had not pleaded guilty, and on which he had not been convicted. Equally, it was not permissible for the sentencing judge to have regard to the tragic death of Deng as a circumstance that aggravated the gravity of the offending, for to have done so would be akin to including in the sentence a component for an offence with which the respondent was not charged, nor in respect of which he had been convicted.[13]

44 That is not to say that the death of Deng was not relevant to an understanding and appreciation of the offence committed by the respondent. The fact that Deng died, as a result of being placed in danger by the respondent, demonstrates that the risk, created by the conduct of the respondent, was not artificial or hypothetical, but was indeed real. In that way, it was relevant to the gravity of the offending. As observed by Ashley JA in R v Lam, Deng's death:

... point(s) up the fact that an allegation that particular conduct was such as to endanger life is not merely an hypothetical construct.[14]

45 Pausing there, it is clear that the judge took the same approach, to his assessment of the nature of the offending by the respondent, in the present case. His Honour, at an early stage in his reasons, correctly noted that it was important to understand that the respondent was not charged with, or to be sentenced for, manslaughter or any other offence concerning Deng's death.[15] In the passage of his reasons sought to be impugned by the Director, the judge addressed factors attending the gravity of the offending. Having noted that the offence had some serious features, for example, because it involved punching a drunken man with sufficient force to cause him to fall to the ground, and then leaving him there, the judge noted that while Deng's death was not a matter 'to be taken into account' in sentencing, nevertheless it illustrated 'how dangerous such behaviour can be'. In the context in which that passage occurred, we consider that the judge correctly characterised the relevance of the death of Deng. As his Honour noted, it demonstrated the reality of the danger which had been created by the conduct of the respondent. In our view, that approach, to the relevance of the death of Deng, was entirely in accordance with the principles to which we have referred.

46 As we have noted, the Director, in support of ground 1, relied on a short passage from the reasons for judgment of Buchanan JA in R v Toms,[16] in which his Honour noted that, in the circumstances of that case, the fact that the victim suffered and died was relevant to an assessment of the gravity of the offence.

47 In Toms, the appellant, who was 33 years of age, met the deceased who was then aged 17 years. The appellant was addicted to amphetamine. Having injected himself with methylamphetamine, he also injected the deceased with the same drug at her request. Sometime later, the appellant observed that the deceased's head was rolling back, her eyes were rolling in her head and she was foaming in her mouth. Notwithstanding those alarming symptoms, the appellant did not seek medical attention, or provide any assistance to her, other than to put her to bed. Six hours later the appellant noted that the deceased was not breathing and had changed colour. Only then did he call an ambulance. He was charged with manslaughter, but later pleaded guilty to the alternative offence of reckless conduct endangering the life of another.

48 The Court of Appeal held that the sentencing judge had erred in his recitation of the elements of the crime to which the appellant had pleaded guilty. For the purpose of re-sentencing him, Buchanan JA stated:

The crime committed by the appellant the subject matter of the first count was indeed serious. The appellant introduced a very much younger person, one who presumably looked to him for guidance, to real danger. It is relevant for an assessment of the gravity of the offence that the victim suffered and then died. The appellant admitted in the course of his record of interview that he understood the dangers of intravenously injecting methylamphetamine. He said that the 'risks are very high' and described his conduct as very reckless. When the appellant saw the deceased's eyes rolling and mouth foaming, he did not seek medical help. He put the deceased to bed, and left her there and she died.[17]

49 Properly understood in that context, the observation by Buchanan JA - that it was relevant to an assessment of the gravity of the offence that the victim suffered and died - was consistent with the principles which we have already stated, namely, that the fate suffered by the victim was relevant to an appreciation of the seriousness of the danger to which the offender had exposed the victim. We consider that the judge, in the passage of the reasons for sentence to which we have referred, similarly took into account the death of Deng, not as an aggravating feature of the offence, but, rather, as illustrating the reality of the danger created by the respondent's conduct.

50 In those circumstances, ground 1 of the appeal must fail.

51 By ground 2, the Director contended that the judge erred by finding that the respondent lacked the appropriate appreciation of the risks associated with engaging in a dispute with someone while standing on or beside a busy road at night.

52 Ground 2 is directed to a section of the sentencing reasons, in which the judge, having referred to the respondent's youth, stated:

All else being equal, a younger person is less likely to appreciate risk or consider consequences. It is evident that Mr Majok lacked the appropriate appreciation of the risks associated with engaging in a dispute with someone while standing on or beside a busy road at night. As will be seen shortly, this is consistent with Mr Bell's opinion, that he lacks maturity.[18]

53 The Director contended that that finding by the judge was inconsistent with the plea of guilty by the respondent to the charge of recklessly endangering the life of Deng, by which the respondent had acknowledged that he was reckless, in that he had foreseen that a probable consequence of his conduct was to expose the victim (Deng) to an appreciable risk of death. It was submitted that the observation of the judge in his sentencing remarks, that the respondent lacked an appropriate appreciation of the risk associated with engaging in a dispute with someone on or beside a busy road at night, traversed the guilty plea made by the respondent, and thus was erroneous.

54 In response, counsel for the respondent contended that the judge properly and correctly identified the mental element involved in the offence, and that he did not contradict the respondent's plea in the passage relied on by the prosecution. Rather, it was submitted, the judge, by referring to the respondent's youth and immaturity, noted that the respondent was less likely to have appropriately weighed the risk, and to have tailored his response to the risk in a considered, mature and appropriate way, than someone of more mature years.

55 The submissions made on behalf of the respondent are correct. In his reasons, shortly before the passage sought to be impugned by the Director, the judge (correctly) stated:

Further, by his plea of guilty, Mr Majok accepts that he foresaw that an appreciable risk of death was a probable consequence of his conduct.[19]

56 Clearly, the judge properly identified and stated the mental element contained in the offence to which the respondent pleaded guilty. In that context, and in the context of referring to the respondent's youth, and his state of mind in the immediate prelude to the offence, the passage relied on by the prosecution did not detract from, nor traverse, the plea made by the respondent. Rather, as submitted on behalf of the respondent, in that passage, the judge did no more than observe (correctly) that, as an immature 20 year old, in the circumstances that prevailed on the evening, the respondent, having foreseen an appreciable risk of death, was less likely to have had an appropriate appreciation of that risk or of its consequences.

58 In support of ground 3, the Director submitted that the offending in this case was a serious example of the offence. At the time of the offence, Furlong Road at that point was a busy thoroughfare. The respondent punched the victim to the head with such force as to cause him to immediately fall to the ground, and then left him in the pathway of traffic in the middle of the night. Further, the fact that the respondent knew that Deng was very drunk, and therefore less capable of looking after himself in that situation, added to the gravity of the offending. Thus, it was submitted, in those circumstances the objective gravity of the offending was very high. It was further contended that the offending was aggravated by the fact that the respondent was then on bail, on a charge of affray, to which he subsequently pleaded guilty.

59 Although the Director did not seek to impugn the finding by the judge, that the respondent's prospects of rehabilitation were 'reasonable to good', nevertheless counsel submitted that the respondent's subsequent history, and his failure to comply with the Community Correction Order imposed on him in September 2015 in respect of the two charges of affray, must qualify the judge's characterisation of the respondent's prospects of rehabilitation. In those circumstances, it was submitted that both general and specific deterrence were important sentencing considerations. Thus it was submitted that the sentence imposed on the respondent was manifestly inadequate.

60 In response, counsel for the respondent submitted that the sentence could not be characterised as being manifestly inadequate. While the judge acknowledged the serious features involved in the offending, his Honour also found there were a number of powerful factors in mitigation. They included the fact that the respondent was young, he lacked maturity, and he had a limited previous criminal history. The judge accepted that the respondent had been in a position of significant emotional strain at the time of the offending, as he had been previously informed that his sister had been attacked by the other occupants of her home, and on the night of the offending his sister had been assaulted and was in an hysterical state. The respondent had been confronted by the victim who was not only drunk but also argumentative and aggressive. Further, counsel referred to the finding by the judge that, at the time at which Deng was run over by the motor vehicle, the respondent had already turned back to help him. The judge also accepted that the respondent had demonstrated remorse, and that his plea of guilty was entered as soon as the Director accepted his offer of plea of guilty to the offence. Counsel also relied on the period of delay between the offending and sentence, during which the respondent had been placed under considerable stress and anxiety, and he also relied on the judge's assessment of the respondent's prospects of rehabilitation.

61 The principles, that are relevant to determining whether a sentence is manifestly inadequate, are well established. In DPP v Karazisis,[20] Ashley, Redlich and Weinberg JJA, in their joint judgment, stated:

In Victoria, the contention that a sentence was manifestly inadequate is invariably expressed as a submission that the sentence was wholly outside the range reasonably open to the sentencing judge in the circumstances. As with the ground of manifest excess, the ground of manifest inadequacy is a stringent one, difficult to make good. Error of this kind will not be established unless the appellate court is persuaded that the sentence was 'wholly outside the range of sentencing options available' to the sentencing judge. Put another way, it must be shown that it was not reasonably open to the sentencing judge to come to the sentencing conclusion which he/she did if proper weight had been given to all the relevant circumstances of the offending and the offendor.[21]

62 Certainly, as observed by the sentencing judge, there were serious aspects of the offending in this case. The actions of the respondent, in striking Deng, who he then knew to be intoxicated, with sufficient force to cause him to fall to the ground, and then leaving him lying on a busy thoroughfare at night time, were inherently dangerous. The respondent's offending was aggravated by the circumstance that he was on bail at the time of the offence.

63 On the other hand, as the judge correctly found, there were a number of important, and significant, mitigating factors that must be balanced against the nature of the offending.

64 In particular, the respondent, who was an immature 20-year-old at the time, was confronted with a difficult and tense situation at the time that he attended at his sister's premises, in response to her call for help, on the evening of the offence. He knew that his sister had already been assaulted by the occupants of her home, and that she was having significant difficulty in persuading them to depart. When the respondent arrived at the premises, he tried to pacify the situation, by intervening when his sister became aggressive with Deng. As noted by the judge, Ms Majok herself was in an emotional state, and Deng was intoxicated. It was in that context that the offending occurred. Further, the offending took place over a particularly short period of time. There was no suggestion that the actions of the respondent, in striking Deng, were other than spontaneous. No conclusion can be drawn in relation to the degree of force with which the respondent struck Deng. As the judge found, although the respondent then left Deng, vulnerable, in the middle of the road, it was only 'a matter of seconds' after the punch that the respondent turned back to assist him, but, regrettably, too late. Thus, unlike, for example, in the case of Tom, the offending by the respondent took place over a particularly short period of time. His offending was further mitigated by the fact that, in a matter of seconds, he turned back to help Deng, and that, after Deng was run over on the roadway, he sought to intercept the vehicle involved, and then contacted the emergency services.

65 In addition, there were other important mitigating factors, which the judge properly took into account. They included the respondent's plea of guilty, which, in the circumstances of the case, the judge correctly found to have been made at the earliest opportunity. It was appropriate for the judge to give weight to the delay in the case, particularly because, during that time, the respondent had twice had to stand trial for the serious charge of manslaughter. The evidence of Ms Cidoni and Mr Bell supported the judge's finding that, during that period of time, the respondent had suffered mental anguish. In addition, as found by the judge, the respondent had reasonable to good prospects of rehabilitation.

66 Certainly, the sentence in the present case could be properly described as lenient. Nevertheless, taking into account the mitigating factors, and balancing them against the gravity of the offending in the case, in our view it could not be concluded that the sentence was manifestly inadequate. Accordingly, we reject ground 3 of the grounds of appeal.

67 For the reasons we have stated, each of the grounds of appeal, relied on by the Director, is not made out. Accordingly, the appeal is dismissed.

[1] R v Majok [2017] VSC 72 ('Reasons').

[2] [2014] VSCA 342; (2014) 46 VR 308 (Maxwell P, Nettle, Neave, Redlich and Osborn JJA).

[7] [2015] VSCA 334.

[9] See eg Zogheib v The Queen [2015] VSCA 334, [67]-[70]; Raimondi v The Queen [2013] VSCA 194, [59] (Redlich JA); GAP v The Queen [2011] VSCA 173, [44] (Redlich JA); R v JMV [2001] VSCA 219; (2001) 124 A Crim R 432, 434 [6] (Winneke P); R v DFA [2001] VSCA 197, [44]; R v Franks (No 2) [1999] VSCA 39; (1999) 105 A Crim R 377, 378 [5] (Winneke P), 387-8 [39]-[41] (Charles JA); R v Marziale (Unreported, Victorian Court of Appeal, Winneke P, Brooking JA and Southwell AJA, 19 April 1996), 34; R v Ahmet (1996) 86 A Crim R 316, 323 (Winneke P).

[11] [2006] VSCA 101, [11]; see also [17] (Neave JA).

[12] DPP v O'Neill (2015) 47 VR 395, 419 [93]; DPP (Cth) v Haynes [2017] VSCA 79, [60]-[62].

[13] R v Newman & Turnbull [1997] 1 VR 146, 150-2 (Winneke P); R v Lam [2006] VSCA 162, [24] (Ashley JA).

[16] [2006] VSCA 101.

[17] Ibid [11]; see also [17] (Neave JA).

[20] [2010] VSCA 350; (2010) 31 VR 634.

[21] Ibid, 662-3 [127] (citations omitted).