R v Abdi & Anor [2020] VSC 225

2 The maximum penalty for ICSI is imprisonment for 20 years. The maximum penalty for affray is imprisonment for five years.

3 ICSI is a category 2 offence under s 3(1) of the Sentencing Act 1991 ('the Act'). This means that pursuant to s 5(2H) of the Act, in sentencing you I am required to impose a sentence of imprisonment upon you in the absence of the application of one of the exceptions contained in parts (a) to (e) of that subsection. It has not been submitted on behalf of either of you that I should do anything other than impose a term of imprisonment and set a non-parole period.

4 The events which occurred in Castley Crescent that night were preceded by an earlier incident in the front yard of a property at 237 Ballarat Road, Braybrook in which the brother of Sean Duncanson, Paul Duncanson, was accosted by a group of men including the two of you. You and others had arrived at that location in a Hyundai motor vehicle driven by Ahmed Sharif ('Sharif'). Paul Duncanson was struck to the face by one or more of the men, and was then surrounded by them in a threatening manner, as witnessed by the householder Sally Roach. The injured Mr Duncanson went to his nearby home after this event, and being aggrieved at his treatment by the men, then went out on foot in an apparent quest to find those responsible for the attack upon him. He was accompanied by his brother Sean. In spite of Sean Duncanson's denial of the fact, the overall evidence indicates that one or both of the Duncanson brothers were armed with weapons at the time.

5 I make it clear that in sentencing you, I have had regard to this lead-up event only insofar as it explains what subsequently occurred. You are not to be punished for any involvement in that earlier event.

6 The evidence indicates that when the Duncanson brothers came upon the Hyundai vehicle in Castley Crescent, Sharif was the driver of the vehicle, and his brother Abdifatah Sharif ('Abdifatah'), the two of you, and another person named Yasir Duale ('Duale') were present as passengers in the vehicle.

7 Sean Duncanson gave evidence in your trial that when he and his brother were walking along Castley Crescent, a vehicle drove slowly past and Paul Duncanson recognised some of the occupants as those with whom he had had the earlier run-in. He then described a cat-and-mouse situation in which the vehicle would slow down and then speed up as the brothers pursued it. He stated that he and his brother caught up with the vehicle and then punched the windows of the car as the car moved slowly along. A number of windows were broken. Sean Duncanson denied that either he or his brother had a weapon.

8 A friend of you and the others in the car, Abdiqani Mohamed ('Abdiqani'), gave evidence that he was riding his push bike north along Castley Crescent having earlier been at number 12 in that street. He said that his friends in a Hyundai vehicle drove past him heading north. At about that time, he heard some yelling coming from behind him and then saw two men running towards him with weapons held in the air. He claimed that he thought the men might attack him. He tried to pedal away and fell from his bike onto the roadway, injuring his knee. He then saw the men above him, and could now see the weapons were a machete and a metal pole or similar. Thinking that they may strike him, he told the men that he was not with the other men in the car. The two men left him alone, continuing to run north in Castley Crescent.

9 Abdiqani told the Court that he then heard the sound of smashing glass and screaming, and faintly saw some figures moving around in the distance. He rode his bike further to the north and then saw some figures fighting on the side of the road. The next thing he remembered was being in the back of the Hyundai vehicle and being driven away from the scene.

10 The evidence indicated that the Duncanson brothers, having caught up with the Hyundai vehicle, set upon it. I am satisfied on the balance of probabilities that one or both of them were, indeed, armed with weapons, which were used to smash a number of windows of the vehicle including the rear windscreen, showering some of the occupants of the vehicle with glass. It is possible that one of the rear seat passengers, Duale, was actually struck by a weapon during the course of the attack.

11 After the vehicle had been damaged in this fashion, Sharif drove some distance to the north, in the direction of Ballarat Road, taking the vehicle away from the attackers. He then stopped the vehicle, reversed into a driveway on the western side of the road, and completed a turn to have the vehicle facing again to the south. At about the point of the turn, one or more of the occupants of the vehicle departed the vehicle.

12 Sharif then commenced to drive back to the south. By this time, there were a number of people on the roadway ahead of him, including the Duncanson brothers and you, Abdi.

13 In circumstances dealt with more fully in the sentence of Sharif which will be passed on the same day as this sentence, the vehicle struck Paul Duncanson with sufficient force to send him flying into the air as witnessed by Mr Munoz, a nearby resident. Mr Duncanson landed on the roadway in a severely injured state. He had sustained mortal injuries in the collision with him. You, Abdi and Abukar, are not responsible for those injuries sustained by Paul Duncanson in the collision.

14 After Paul Duncanson had been struck by the vehicle, Sharif drove further to the south before turning the vehicle around again. He then drove a short distance to the north before parking at an angle on the nature strip adjacent to number 33 Castley Crescent. By this time, the two of you and Abdifatah were out of the vehicle.

15 Kathleen Barnard, a woman who at the time of the events lived at a house on the corner of King Street and Castley Crescent, Braybrook, was the witness who had the best view of the attack upon Sean Duncanson. Her attention was initially drawn to events out on Castley Crescent by a 'crunchy sound' which caused her to believe a vehicle may have run into the tree at the front of her house. She looked out her lounge room window and saw a group of people arguing. She went to her bedroom and looked out the window. Now she saw a vehicle further to the north, parked on an angle partially on the nature strip. She observed a group of four or five people punching and kicking a person who was on the ground near the front gate of number 33 Castley Crescent. The person being assaulted was curled up 'in the foetal position' and calling out in pain. It is reasonable to assume that the person was Sean Duncanson. Ms Barnard heard someone yelling out, three or four times, 'Where is he?' She watched this attack, which was occurring on the driver's side of the car, for up to half a minute before deciding to ring the police. She left the window to make the call. Having done so, she returned to the window. She saw what she described as 'a couple more kicks and punches, maybe for about five seconds', and then the attackers 'dispersed into the car'. After the car drove off towards Ballarat Road, she opened the window to ask the man who had been attacked if he was alright. She received no response, but heard the man moaning.

16 Another eye witness was Vi Kit Chung, a neighbour who observed some of the events from across the road at number 32A. He saw various movements of the car and then observed 'a few' people get out the car and run towards two men near the letter box at the front of number 33 and then proceed to fight them. One of the men from the car wearing a light coloured shirt had a weapon held raised in his right hand 'as if it was to strike somebody'. He saw one of the men from the car go up to a man sitting near the fence and kick him twice to the chest area.

17 Beyond what I have already said, there is little credible detail as to the events that occurred outside the vehicle which resulted in Sean Duncanson sustaining serious injuries. Sean Duncanson himself, who sustained a serious brain injury which has affected his memory of the events, had what could be described as unreliable-sounding memories about the events, and no clear memories of what actually happened to him to bring about his serious injuries. He described the driver of the car getting out and attacking himself and his brother with a knife. I am confident this memory was a faulty one. He spoke of a number of people then jumping out of the car and running towards him and his brother. That was probably a correct memory. He believed he was then knocked unconscious, and had no specific memory of the attack upon him. He purported to have memories of his brother being struck by the vehicle, and the aftermath of that. I think it is highly likely that he did see and recall that event, although his description of it had the event not in its proper place in the sequence of events.

18 As I will shortly summarise, neither of you in your later interviews with the police gave any account which explained what happened in the attack upon Sean Duncanson of which you have been found guilty. As indicated above, the known details of the attack are very sketchy. What is not in any doubt is the ferocity and seriousness of the attack which is clearly borne out by the efficiency with which it was carried out and the extensive and serious injuries which were the result.

19 The evidence would indicate that after Paul Duncanson had been struck and seriously injured by the motor car driven by Sharif, Abdifatah,[1] and you, Abdi, and Abukar, set upon Sean Duncanson, inflicting serious injuries upon him. Paul Duncanson was also further attacked with the use of a bladed weapon or weapons and perhaps a rod-like weapon of some sort.

20 After the attacks, the two of you and others returned to the Hyundai. The vehicle was driven away from the scene by Sharif. Neither one of you, nor any other occupant of the vehicle, made any attempt to assist either of the injured men or to notify the police of what had occurred.

21 The vehicle was driven to a location in St Albans and then abandoned after Sharif had removed the number plates and any items in the vehicle linking him to the vehicle. You and the other occupants of the vehicle were picked up from St Albans by a friend Waleed Mahmoud and driven away. In the ensuing days, there were meetings and discussions between you and the others and all of you contemplated handing yourselves in to the police. In due course, the two of you, Sharif and Abdifatah were all arrested and interviewed. I will turn to your interviews presently.

22 The scene in Castley Crescent after your departure was a distressing one. After Paul Duncanson had been struck by Sharif's vehicle and then further attacked, he staggered across the road and sought refuge in the front yard of 32A where he was shortly thereafter located by a number of people including Sally Roach. He was covered in blood and having difficulty breathing. He was assisted across the street by Ms Roach to the front of 33 Castley Crescent where Sean Duncanson was located on the grass nature strip, covered in blood and with serious injuries. According to Ms Roach who provided assistance to him, Sean Duncanson was unwell and confused, and mumbling incoherently. He claimed to have been run over and bashed. He had a substantial wound to his neck which was bleeding profusely. Ms Roach took off her jacket and applied it in an effort to staunch the flow of blood. Both of the Duncanson brothers were assisted into the driveway of number 33. Emergency services were contacted.

23 A number of ambulances arrived promptly. Paul Duncanson and Sean Duncanson were treated by members of Ambulance Victoria at the scene.

24 Sean Duncanson was found by ambulance officers who treated him to be very unwell. He was largely incoherent, and bleeding from a laceration to his neck and a wound to the back of his head. He was transported as a time-critical patient to The Alfred Hospital ('The Alfred') where he was handed over to staff there at 10.47 pm.

25 In terms of an understanding of the injuries sustained by Sean Duncanson and the treatment he received for them, the Court was reliant on the evidence of Dr Maaike Moller, a Forensic Physician employed by the Victorian Institute of Forensic Medicine. Dr Moller examined Mr Duncanson in the Intensive Care Unit ('ICU') at The Alfred on the afternoon of 10 December 2017, spoke with an Intensive Care Specialist who treated him, and reviewed the hospital file. Her examination of Mr Duncanson was limited by the fact of his being in the ICU at the time, and by the bandages which had been applied, including to his neck. She did describe a number of minor incised injuries, bruises and abrasions to the head, hands, legs and elsewhere, and a number of stapled wounds to the head.

26 The hospital notes indicated that Mr Duncanson was observed to be bleeding heavily and to have multiple wounds to his head at the time of admission, including two to the forehead, one to the temple, and what was described as a 'macerated V-shaped laceration with a boggy depression underlying it over the left occiput'. His consciousness was reduced. A CT scan of the head revealed a comminuted and depressed fracture of the left squamous temporal bone, a fracture of the left occipital bone, and a depressed fracture of the left frontal bone involving the left frontal sinus and left orbital roof and superior medial orbital rim. There were areas of bleeding underlying the skull fractures at the side and back of the head being a combination of extra-dural and subdural haemorrhage. There was a rightward subfalcine herniation of two millimetres.[2]

27 Mr Duncanson underwent a number of separate surgical procedures to treat his life-threatening head injuries. On 10 December 2017 there was a left frontal craniotomy to evacuate the bleeding and a repair of the depressed fracture to the occipital skull. Also conducted was a left temporal occipital craniotomy to repair the skull and an underlying tear to the dura. On 19 December 2017, Mr Duncanson underwent an open reduction and internal fixation of the fracture of the left frontal sinus.

28 He was extubated on 11 December 2017 and discharged to the ward on 13 December 2017. Staples were removed on 20 December 2017.

29 On 22 December 2017, Mr Duncanson was discharged from the ward to a rehabilitation ward at Caulfield Hospital. In rehabilitation, he received care from a multi-disciplinary team assembled for the management of his brain injury. There were various follow up appointments in respect of the surgical interventions.

30 Mr Duncanson was discharged from the rehabilitation hospital on 24 January 2018. Upon discharge, a neuropsychological assessment noted ongoing reductions in working memory, divided attention, language abilities, idea generation and planning.

31 Overall, from the time of admission, Sean Duncanson spent over one-and-a-half months in hospital, of which three days were in intensive care, a week and a half in an acute medical ward, and a month in rehabilitation. As part of his care he received input from multiple specialist teams including the trauma team, neurosurgery, intensive care specialists, faciomaxillary surgeons, ophthalmologists, psychiatry, and allied health teams including speech pathology and occupational therapy.

32 In respect of the severity of the injuries, Dr Moller described them as life-threating. As she put it:

He had bleeds in multiple parts of his brain, he had fractures in multiple parts of his skull, he had swelling of his brain such that there was a shift of his brain from one side to the other and he required emergency brain surgery, including drilling of holes into his skull in two sites, and that was life-saving surgery.[3]

33 As to the causation of the serious injuries to the head, Dr Moller said the likely cause was blunt force trauma. She said that on a very conservative estimate there were at least two applications of force, but she thought in all likelihood there were more. One application to cause the injuries to the front of the head and another to have caused the injuries to the side and back of the head. It was likely, however, that there would have been more applications of force given the number of surface injuries and the fact that the injuries to the side and back of the head were in discreet places.

34 In cross examination, Dr Moller conceded the possibility of the injuries to the head having been caused by one blow and then a fall to the ground. I do not accept that as being a remotely possible scenario.

35 A consideration of the overall injuries sustained by Sean Duncanson reveals that he was subject to a significant number of separate applications of force to his head, limbs and torso. At least some of the applications of force must have been with the use of bladed weapons which caused sharp force injuries and another weapon or weapons which inflicted blunt force trauma. There must have been a number of forceful blows to the head which caused the three separate areas of damage to the facial bones and skull and the underlying bleeding within the cranium.

36 The injuries sustained by Sean Duncanson were life threatening. In the absence of prompt and appropriate medical treatment, he would have died.

37 Dr Malcolm Dodd, a forensic pathologist, gave evidence of having conducted an autopsy on the body of Paul Duncanson on 10 December 2017. As well as describing the serious internal injuries which he considered to be responsible for the death of Mr Duncanson, Dr Dodd described other injuries by way of abrasions and lacerations to the head, limbs and torso which were non-specific, and might have been caused by impact with the motor vehicle or the resultant impact with the hard surface of the road, or by impact with a weapon. There were some injuries, however, which were unambiguously caused by some mechanism other than by Mr Duncanson having been struck by a motor vehicle. On that score, Dr Dodd described what appeared to be an incised injury in front of the left ear, consistent with having been produced by an edged weapon. Other such seemingly incised injuries were found to the back of the head of Mr Duncanson, the outside of the upper right arm, one just above the right elbow, one to the right forearm, and one to the back of the right wrist. Dr Dodd observed a blunt force injury to the upper right arm which had a banded appearance to it which he considered was consistent with being hit forcefully with a rod-like object.

38 The incised and some of the blunt-trauma injuries mentioned led Dr Dodd to the opinion that as well as having been struck by a motor vehicle, which was the cause of death, Paul Duncanson had also been the victim of an assault.

39 Leading Senior Constable Rebecca Robinson ('LSC Robinson') of the Major Crime Scene Unit carried out an examination of the two main crime scenes in this case. She located blood stains on the front porch of the property at 237 Ballarat Road and a blood trail leading around the corner and into Castley Crescent heading south.

40 LSC Robinson located broken glass at a number of locations which she specified on Castley Crescent, a pocket knife outside number 37, a Toronto Raiders cap at evidence marker 15, a black-handled machete at marker 16, a golf club shaft at marker 17, and a piece of bloodstained metal tube, a black cap, and a black handled kitchen knife under that cap, all near marker 24 in photograph 90 of Exhibit C.

41 Mustafa Sharif ('Mustafa'), one of the brothers of Sharif, gave evidence in the trial about conversations he had with the two of you and others in the days following the events. The tenor of his evidence was that in these conversations, all of those to whom he spoke gave similar accounts about the events in question.

42 In your case, Abdi, Mustafa told the Court of two telephone conversations he had with you on the Monday after the events. You informed him that you were worried about handing yourself in. He encouraged you to do so. You asked him not to mention his name if he went to the police station. During one of the conversations, which was placed before the jury by means of section 32 of the Evidence Act 2008 by the witness reading part of his statement aloud in Court, you apparently said to Mustafa that you and Abukar were fighting a white guy. You were holding onto him and Abukar, according to you, hit him three times with something you described in Somali but which Mustafa called, 'the thing you cut trees with'. You also apparently told him that Abdifatah had thrown away a knife.

43 In your case, Abukar, Mustafa indicated on oath that he spoke to you at a park on the Monday afternoon. You claimed that the Duncanson brothers had weapons and smashed the windows of the car. You and your colleagues thought you were going to get killed. As to what you told him occurred, Mustafa said, 'The same thing that the other boys had mentioned how those events occurred'. Upon being prompted by reference to his statement pursuant to s 32 of the Evidence Act 2008, Mustafa indicated that you stated to him that you and Abdi both had weapons. As to what the weapons were, as Mustafa understood it, he said that you were speaking in Somali and he understood you to be referring to 'something that cuts trees'. He asked you to clarify, and you indicated that it was an axe. You apparently claimed that one of the Duncansons had thrown the axe and struck Abdi to the chest with it.

44 You, Abdi, were arrested by police on 16 January 2018. You were interviewed in a short audio/visually recorded interview on that day. There were some indications that you may have been tired and/or somewhat affected by a substance at the time of the interview. The interview was largely a no comment interview, but you did give some responsive answers. You said you were familiar with Braybrook, having lived there your whole life. Having told the police that you had a generally bad memory, when asked if you could remember what happened in the incident when Paul Duncanson had died and his brother had been seriously injured, you replied in the negative. You claimed not to know what happened that day. You admitted knowing the Sharif brothers and Abukar. When shown some still images from CCTV footage from the rear of an apartment complex behind number 233 Ballarat Road, Braybrook, and asked to say who the people were, you initially said the pictures were blurry. When it was then put to you that the images depicted you and the others getting out of Sharif's car, you admitted your presence, but denied knowledge of 237 Ballarat Road and said you could tell the police nothing about being there. When asked what you could tell police about the incident where Paul Duncanson was killed and Sean Duncanson seriously injured, you said, 'I dunno, I dunno'. You claimed to have no knowledge of the St Albans location where the car was dumped, or having been picked up at that location by Waleed Mahmoud. You denied being in possession of any bladed weapons on 9 December 2017. You specifically denied causing injury to either Paul Duncanson or Sean Duncanson.

45 To my mind, it is plain that you did not tell the truth to the police.

46 You, Abukar, unlike Abdi, gave a detailed account of events leading up to the incidents in Castley Crescent. You indicated that you had spent the previous evening at your aunt's house in Melon Court, Braybrook. You had been asleep on the evening of 9 December as a result of elevated blood sugar due to your diabetes. You had been picked up by your friends in their vehicle and then fallen asleep in the back left hand seat of the car. You woke up to a pole coming through the window. The person next to you was struck and injured by the pole and you were showered with broken glass. You panicked and demanded to be let out of the car. The driver, Shazza as you called him, panicked as well and kept accelerating. The front seat passenger jumped out of the car. You jumped out yourself but as you were doing so your foot became stuck in the door frame. Shazza accelerated and you flipped and hit your head on the kerb, which caused you to be 'knocked out clean'. You awoke to someone tapping you and telling you to get into the car. You claimed that you were picked up and put back into the Hyundai. The car was then driven away and you all were picked up from a location and brought back to Braybrook. Later, you heard news about what had occurred during the time when you had been unconscious.

47 The jury verdict against you makes plain the fact that the jury rejected your account of having been unconscious during the events in question.

48 The Crown case against the two of you, Abdi and Abukar, and against Abdifatah, was that you were guilty of ICSI as joint offenders. It was asserted that following the attack upon the car in which you were passengers, you got out of the vehicle having decided to meet the violence of the Duncansons with violence of your own. You quickly formed an agreement to attack the men, and each of you intended that serious injury would be inflicted upon Sean Duncanson. You then attacked the men, and specifically, one or other or both of you inflicted significant and serious violence upon Sean Duncanson. This attack was only able to be accomplished once both Duncanson brothers had been disarmed and rendered helpless. This attack, so it was asserted by the Crown, had nothing to do with self-defence or defence of another, and everything to do with anger and retribution.

49 On the Crown case, it was said not to matter whether or not the Duncansons were armed with weapons at the time you commenced your attack upon them. Whether they had weapons or not, by the time you inflicted serious injury upon Sean Duncanson, he was helpless. As for you, it was asserted that the overall evidence, including the ease and speed with which you were able to overcome the Duncanson brothers, the lack of significant injuries to any of you, the very substantial injuries inflicted upon Sean Duncanson, and the number of weapons found at the scene and otherwise described in the evidence, were indicative of the fact that you must have had some weapons when you got out of the car.

50 As for the charge of affray, it was the Crown case that each of you intentionally used or threatened unlawful violence and that your conduct would cause a person of reasonable firmness to be terrified. It was alleged that each of you, having got out of the motor vehicle, engaged in an extravagant show of violence towards both Paul Duncanson and Sean Duncanson with or without the use of weapons. The violence was unlawful, there being no cause for you to act in self-defence. You met the earlier violence of the Duncanson brothers with a retaliatory display of force which quickly overcame your victims.

51 As the Crown put the case, the verdict on the affray charge was not dependent on the outcome of the charge of causing serious injury to Sean Duncanson or the alternative assault charges. The conduct relied on in the affray was much broader than that relied on in proof of those other charges. In particular, any attack upon Paul Duncanson would be part of the material on which the charge was based. No agreement would be necessary to be proved, nor any injury of a particular level.

52 On the case made on behalf of each of you, the approach of the Duncansons towards Abdiqani was frightening for him and for his friends watching on, including you. The attack upon the car which followed, carried out with the use of weapons, was a frightening event. The occupants of the vehicle had every reason to be frightened and confused, and to have considered that they should leave the vehicle to ensure their safety and that of Abdiqani.

53 The fact of any agreement between the two of you and anyone else to attack the Duncansons was strongly disputed.

54 It was also disputed that there was any evidence that at the time serious injury was caused to Sean Duncanson, he had already been disarmed, or had stopped behaving in violent and aggressive fashion.

55 It was disputed that either of you was involved in any violence inflicted upon Sean Duncanson. It was also disputed that the medical evidence supported the Crown contention of a large number of blows inflicted upon him. He could have sustained the serious injuries as a result of a single blow and a fall to the ground. In addition, in circumstances where some evidence indicated he could have been struck by Sharif's vehicle, it was possible that he could have sustained the skull fractures as a result of that.

56 Even if an agreement to assault and cause serious injury could be proved, and the participation of either of you in the assault, the prosecution could not disprove that you may have acted in self-defence.

57 On the affray charge, the defence of each of you was that you were not engaged in any threatened or actual force, but that even if you were, you at all times were acting in self-defence.

58 The verdicts of the jury do not provide a clear answer to every proposition on which the Crown case was based. To state the obvious, the jury verdicts mean that the jury were satisfied beyond reasonable doubt of the existence of all of the elements of the two crimes, including that you were not acting in self-defence.

59 This means that in respect of the charge of ICSI, the jury were satisfied that each of you did enter into an agreement with at least one other accused, including Abdifatah, to assault Sean Duncanson, that each of you intended that Sean Duncanson would be seriously injured, that the agreement remained in place at the time of the attack, that each of you acted to support the agreement, that in accordance with the agreement, one or more of the parties to the agreement caused serious injury to Sean Duncanson, and that in becoming or remaining a party to the agreement, neither of you was acting in self-defence as defined by law.

60 The verdict of the jury makes it clear that the jury were satisfied beyond reasonable doubt that it was your actions, and not the event of having been struck by the vehicle if it occurred, which caused serious injury to Sean Duncanson.

61 It can be seen from that analysis that the jury verdict does not answer such questions as whether or not the Duncansons were armed, or indeed, either of you was armed at the time of leaving the vehicle.

62 As for the charge of affray, the jury verdict shows that the jury were satisfied beyond reasonable doubt that each of you, as an individual, took part in conduct which satisfied each element of that offence.

63 On your behalf, Abukar, Mr Kenny submitted that your offending in Castley Crescent occurred between the location where your pocket knife and cap were found, and where items 18, 19 and 24 were located, a very short distance. He submitted that there was such uncertainty in the evidence as to exactly what you did outside the car that it was difficult for him to press any particular narrative on the matter. He acknowledged that the jury verdict meant that the jury had rejected your account of not having been involved at all. The verdict also meant that they were satisfied the serious injuries to Sean Duncanson were inflicted by you and others.

64 Mr Kenny submitted that I should find on the balance of probabilities that when the Duncanson brothers approached and then attacked the car, they were armed with weapons. Some, if not all of the weapons that were later used to inflict serious injuries upon Sean Duncanson had been brought to the scene by him and his brother. On the question of any weapon you may have had or used in the attack, however, Mr Kenny conceded that I could be satisfied beyond reasonable doubt that you used some type of bladed object, based on your admissions to Mustafa, but that I could make no higher or more specific finding than that. There was a gap in the evidence as to the precise weapon you had and what you did with it. A little later, Mr Kenny submitted that there was no evidence that you or the other accused had been in possession of the weapons used in the attack upon Sean Duncanson before the attack commenced, by which I took him to be submitting that there was no evidence that you or the others actually took any weapon to the scene of the attack, as opposed to having relieved the Duncansons of weapons.

65 Mr Kenny submitted that at the point when you were in the rear seat of the vehicle and the windows were being smashed by the Duncanson brothers, there was no evidence that you or any of the other occupants of the car were aware of the connection between Paul Duncanson and the earlier incident. He submitted that you got out of the vehicle in circumstances where shortly before it had been under attack and glass had been sent flying into the car.

66 He submitted that whilst the assault was significant, involving a number of blows with a number of weapons, it was an offence of very short duration which unfolded immediately after and consequent upon a frightening attack upon the car by the Duncanson brothers. There was no evidence of premeditation. Rather, this was a 'profound overreaction' to the attack upon the vehicle which was the immediate trigger to the crime. The attack upon Sean Duncanson occurred in the course of a 'rapidly evolving situation'. You had been drinking alcohol and smoking cannabis in the lead-up to the attack.

67 On your behalf, Abdi, Mr Pearson adopted the submissions of Mr Kenny insofar as they applied to you. He submitted that you had been using alcohol on the night in question. He urged me to find that not only had there been a level of aggression from the Duncanson brothers preceding the offence, but that one or both of them had used weapons in their attack upon the car. This provided a high level of provocation. There was no premeditation to your crime. Rather, it occurred spontaneously, and only over a very short period of time and short geographical distance, at a time when you were intoxicated to some extent. He submitted that there was no basis upon which I could find, as an aggravating feature, that you physically wielded a weapon against Sean Duncanson as opposed to being a party to an agreement with others who did so, a matter upon which I would need to be satisfied beyond reasonable doubt before acting.

68 Mr Pearson reminded me of the concession of Dr Moller that the fractures to the skull of Sean Duncanson could have been caused by one or two blows. He submitted that on the entirety of the evidence, I would be hard pressed to find there were more blows than that causing the serious injuries. He further submitted that there was no objective evidence of an assault upon Sean Duncanson over a protracted period of time with weapons. He submitted that Sean Duncanson was on the ground 'and he was hit in the way that he was hit and he was kicked and then the group left'.

69 Later returning to the events inside the car, as a result, apparently, of your drawing the matter to his attention, Mr Pearson indicated that your position was that there was an air of panic in the back seat of the car at the time of and shortly after the attack upon it. You, it was submitted, at that time regarded the motor vehicle as anything but a safe place in which to remain. You believed it was necessary to extricate yourself from the small confines of the car where you were in a state of grave danger. It was for that reason, so it was submitted, that you departed the vehicle.

70 Mr Pearson conceded that the proposition of your having left the vehicle in a state of panic did not sit well with the jury verdict against you.

71 I accept that the offending of each of you was preceded by a violent attack upon the car in which you were passengers by two men, at least one of whom was armed with a weapon of some sort. This attack was itself unexpected and frightening. The departure of each of you from the car followed shortly after the attack upon the car. That attack was the trigger for your criminal conduct thereafter, and could be said to amount to some provocation to you. I accept that your offending was not premeditated. I do not accept, however, that you left the car because you were scared for the welfare of yourselves or Abdiqani, or in a state of panic. That would be a matter in mitigation which you would need to have proved on the balance of probabilities. You have not done so. Indeed, in light of all of the circumstances, including in particular the nature and severity of the attack upon Paul Duncanson and Sean Duncanson which followed so shortly after you left the vehicle, I am satisfied beyond reasonable doubt that your intention at the point of your departure was to deal with the Duncanson brothers in some way in retribution for what they had done. I am satisfied beyond reasonable doubt that one or other or both of you and/or Abdifatah was/were armed with a weapon or weapons when you left the vehicle. As for your state of mind when you left the vehicle, the prosecution case was not dependent on proof that the agreement to cause serious injury to Sean Duncanson had already arisen at that point. At the very least, however, consistently with the jury verdict, I am satisfied that from a point shortly after your departure from the vehicle, if not before, an agreement arose between the two of you and Abdifatah to attack Sean Duncanson, that each of you, Abdi and Abukar, intended that serious injury would be inflicted upon him, that you each acted in support of the agreement, and that in accordance with the agreement one or both of you and/or Abdifatah assaulted Sean Duncanson in violent fashion, causing the numerous injuries he sustained to his head, limbs and torso, and more particularly, causing the head injuries which amounted to serious injury. I am satisfied that this assault was carried out with weapons, that whilst continuing for only a relatively short space of time, it was exceedingly violent and dangerous, and that in the course of it, Sean Duncanson was struck repeatedly to the head, face, limbs and torso with weapons. I am satisfied that there was no aspect of self-defence to this attack. It was entirely punitive in nature.

72 Furthermore, before, at the time of or after the assault upon Sean Duncanson, Paul Duncanson was also attacked with the use of at least one bladed weapon, multiple blows being inflicted. This attack upon him was an attack upon an already seriously injured and helpless man.

73 The overall scene in Castley Crescent Braybrook during these events was one in which the two of you were parties to extravagant and frightening violence which would undoubtedly have been such as to cause terror to a bystander of reasonable firmness.

74 The above description of your offending makes plain the fact that both of the crimes of which you have been found guilty were very serious.

75 Mr Kenny conceded on your behalf, Abukar, that I could be satisfied beyond reasonable doubt that you used a bladed weapon in the attack, whereas in your case, Abdi, Mr Pearson made no such concession, and submitted that I could not be satisfied beyond reasonable doubt that you personally wielded a weapon. I can indicate that I do not consider, in the circumstances of this violent, unplanned group attack, that that distinction would be a proper basis to distinguish between you insofar as the seriousness of your offending is concerned. Nor do I find that there is any other basis on which I should distinguish between you on that score.

76 You, Abdi, are now aged 23, having been born on 1 July 1996, at least, insofar as records indicate it. You were therefore 21 years old at the time of your offending. You were born in Somalia and came to Australia with your family at the age of one. You are an Australian citizen. Your father was a motor mechanic who is now physically very unwell and was unable to attend Court during the trial. Your mother has performed home duties. She supported you by her presence throughout the trial. You have five sisters and three brothers. You grew up in Braybrook and attended several local primary schools and commenced secondary school at Braybrook College before being expelled after two years. Your childhood was not a happy one and you were the victim of physical abuse by your father.

77 When you were 14, your parents decided to send you and several of your siblings back to Somalia because your grandmother was dying. A further reason for the trip in your case was your increasingly problematic behaviour. It was apparently hoped that some time in Somalia living with your relatives and with traditional discipline imposed upon you would straighten you out. Whilst your siblings returned to Australia, you remained in Somalia for six years until 2016. Your formative years spent in Somalia were marked by some shocking experiences set out in some detail in the report of Ian Mackinnon, Clinical Psychologist,[4] including seeing a number of terrorist acts occur and then being kidnapped and held to ransom. You received no formal education in Somalia apart from Quran studies. It was submitted on your behalf that your traumatic experiences in Somalia shaped the person you became.

78 Upon your return to Australia at the age of 20 you obtained casual employment as a labourer. You lived at home with your parents for a time, but then left home and endured extended periods of homelessness leading up to the time of your arrest.

79 You have a history of smoking cannabis and methylamphetamine ('ice') from the age of 13. You rarely used alcohol or drugs whilst in Somalia. Upon your return to Australia, you used ice and other drugs quite heavily. You have never received any treatment for substance abuse.

80 You have no prior convictions as such, but have accrued convictions from three court appearances in 2018. On 24 January 2018, you received an aggregate term of imprisonment of 8 days for charges of dealing with property suspected of being proceeds of crime, trafficking in methylamphetamine, trafficking in heroin, and failing to answer bail. You were fined for unlawful assault on 19 June 2018. Then in October the same year, you were fined for trespass.

81 Mr Pearson provided some information about these matters to me on the plea hearing. Relevantly, the assault matter occurred in the food court at Crown Casino. You apparently reached over a counter and grabbed some paper napkins. You were chastised by the vendor, engaged in a verbal dispute with him, and ended up punching him to the side of the head.

82 Mr Mackinnon noted that you had no earlier history of psychological or psychiatric treatment. When you were on remand, however, you apparently commenced seeing a psychiatric nurse and a general practitioner and you were told you suffered from Post-Traumatic Stress Disorder ('PTSD') and were prescribed antidepressant medication. Mr Mackinnnon stated that at the time he assessed you on 23 January 2020, you appeared to be suffering from PTSD. He considered this to be related to the emotional and physical abuse perpetrated upon you by your father during your childhood and the traumatic experiences you endured in Somalia. Mr Mackinnon described you also experiencing ongoing psychotic symptoms including paranoia, delusions and hallucinations, but there was nothing put before me to indicate you have ever been diagnosed with a psychotic illness. Mr Mackinnon noted that your heavy use of hallucinogenic substances probably elevated your propensity to suffer psychotic symptoms. You are of normal intelligence.

83 I was informed of an event which occurred in March 2017 when you were hit over the head and to the elbow with a machete, leading to your hospitalisation. You claim that this event caused you to become hypervigilant to violent events around you.

84 Mr Mackinnon expressed the opinion that you were suffering from PTSD at the time of the offending which 'probably made a significant contribution to his offending behaviour' in a number of ways. However, I note that Mr Pearson made it clear that he did not rely on the principles in R v Verdins[5] numbered one, two, three, four and six. He did not submit that there was any causal connection between the psychological condition from which you suffer and the offending itself. This was because of the jurisprudence surrounding Verdins and the qualified nature of Mr Mackinnon's opinion above.

85 Mr Pearson urged me to take into account, in a general and contextual way, your highly traumatic years in Somalia.

86 As for the fifth limb of Verdins, he submitted that there was a basis for me to conclude that your time in custody would be more burdensome or onerous for you in view of your PTSD. When asked to indicate the particular portions of Mr Mackinnon's report which would make out that contention, Mr Pearson pointed to paragraph 9 of the report, but in the end conceded that there was nothing in the report that made the point explicitly.

87 It was conceded that five of the six limbs in Verdins have no application in your case. In the circumstances, I consider the evidence fell short of establishing the fifth limb also. That is not to say that the PTSD from which you apparently suffer, and the considerable trauma in your life which has apparently been the trigger of that, cease to be relevant in sentencing you. I take them into account in the general sense as being important parts of your background and personal circumstances.

88 By way of further material tendered on your behalf, I was provided with a detailed letter from Stephanie Zoudah, who has been your partner for some years. I also received a letter from your mother. Both spoke very highly of your character and qualities as a man. I take this material into account.

89 I was also provided with a bundle of certificates relating to courses you have completed whilst on remand. It was submitted on your behalf that your efforts in custody to do something about your mental difficulties and to better yourself through the completion of such courses augured well for your prospects of rehabilitation.

90 You, Abukar, are now aged 26, having been born, as far as can be ascertained, on 1 January 1994.[6] You were born in a village close to Mogadishu, Somalia. At the time of your birth, Somalia was in the grip of civil war. You are the eldest of 6 children born to your parents. The family fled Somalia to Kenya and were accepted as refugees into Australia in 1998, settling in Perth. The family continues to live there. Your father is a taxi driver and your mother works in child care. In spite of the sometimes troubled relationship with your father, he supported you in Court throughout the trial.

91 You started your schooling in Perth, but when you were 12, you and your brother Abdifatah were taken by your father to Nairobi, Kenya, and placed in a boarding school at which general and religious instruction were provided. Conditions and discipline at the school were very harsh. You absconded from the school and made your way to Mombasa where you met up with your uncle and were then enrolled in another similar school. Again you absconded and after a period of homelessness, you regained contact with your parents and returned to Australia in 2012 after about six years away. Your time in Kenya was in many respects traumatic. Amongst other things, you were the victim of violence towards you, and you also witnessed a number of atrocities. You attended Sevenoaks Senior College in Perth on your return but unsurprisingly struggled to cope academically and socially because of your experiences in Kenya. You were diagnosed with type-1 diabetes shortly after your return and struggled also with this. You left school during Year 11. You did a TAFE course in automotive mechanics and then had a number of labouring-type jobs.

92 You had a turbulent relationship with your parents during your teens and early adulthood. You left the family home when you stopped going to school. For two years, you lived in share-houses or were homeless. You worked intermittently and commenced using cannabis, ecstasy and alcohol heavily. Your drug use essentially continued until your remand on the current charges.

93 You accrued a number of criminal convictions in Western Australia between 2012 and 2017. These arose from 9 court appearances during those years at the Perth and Armadale Magistrates' Courts, at which you were convicted of 24 charges in total. The charges concerned a variety of offences including some of dishonesty and two charges of assault in 2013 for which you received an intensive supervision order. One of these charges concerned an assault upon a member of the police force.

94 In addition to your prior convictions, Mr Kenny very fairly informed me of some further charges of trespass and wilful damage arising from events in October 2017, and a charge of recklessly causing injury concerning an alleged assault upon a fellow prisoner in Fulham Prison in September 2018. I have been informed that these matters are listed to be heard in Sale Magistrates' Court on 1 June 2020 and are expected to proceed as a guilty plea.

95 Mr Kenny submitted that your criminal history is consistent with the somewhat chaotic life you were leading in Perth in your late-teens and early adulthood. He submitted that it was of such a different character than the current offending, and occurred when you were so young, being only just out of the Children's Court for much of it, so as to warrant little weight being attached to it.

96 You came to Melbourne in the latter half of 2017, intent on seeking a fresh start and finding employment as a motor mechanic. You initially stayed with the Sharif family to whom you are related. You were unable to find any stability and descended into a lifestyle of drug use culminating in your arrest on these matters. While on remand, you have ceased your drug use and undertaken the limited courses available to you as a remand prisoner. I have had regard to a number of certificates tendered on the plea in respect of educational and vocational courses completed by you during your time in custody.

97 Another matter of note is that upon coming to Melbourne in the lead-up to this offending, your formed a relationship with a young woman named Faiza Day with whom you had a child who was just over the age of one at the time of the plea hearing. Ms Day was supportive of you throughout the proceedings, and remains so. Mr Kenny submitted that this is a matter which motivates you to ultimately reintegrate yourself into the community.

98 You have been assessed by psychologist Gina Cidoni as suffering from PTSD as a result of your experiences in Kenya, and also anxiety, major depressive disorder and substance use disorder. She expressed the opinion in her report that Verdins principles may have application in your case, on the basis that what she described as your mental illness, made up of the PTSD and depression, was severe and reduced your moral culpability because it would have impaired your ability to exercise appropriate judgment and make calm and rational choices and made you disinhibited. She went on to say that the drug and alcohol intoxication with which you were affected at the time of the offending would have further impaired your judgment and made you disinhibited.

99 Mr Kenny accepted in his submissions that any impairment of mental functioning from which you suffered at the relevant time did not have the necessary connection to the offending to enliven limbs one to four in Verdins. However, based on Ms Cidoni's opinion that you would experience prison as more stressful and as a greater burden than would a person with normal faculties, he submitted that the fifth limb is enlivened. Mr Kenny conceded, however, that this was not a very significant point on the plea.

100 As for your state of PTSD and depression, Mr Kenny submitted that although not such as to enliven limbs one to four in Verdins, it was relevant as to the circumstances in which you found yourself at the time of your offending, and should be taken into account in that general way.

101 Mr Pearson on your behalf, Abdi, emphasised that you were only 21 years old at the time of your offending, and had only recently returned from Somalia. You were using illicit drugs, and were still yet to apply yourself to coming to terms with the unfortunate experiences of your young life. None the less, you had no criminal record at that time, and your criminal record now, minus the current offending, is very modest. You come from a good, law-abiding family, whose support you retain. You have taken the first steps in custody towards treatment for your mental difficulties. Whilst not well educated, you are literate and capable of both further education and employment in future.

102 All-in-all, Mr Pearson described your prospects of rehabilitation as 'reasonable', and urged me to focus upon your rehabilitation in passing sentence upon you. Indeed, as he put it, 'a light should well and truly be shone upon [your] rehabilitation'.

103 In your case, Abukar, Mr Kenny noted that Ms Cidoni did not assess you as exhibiting any signs of an anti-social personality. You have been abstinent from the use of alcohol and illicit drugs in prison. You have received at least some limited treatment for your mental health issues. You are still quite youthful, have displayed some work ethic in the past, and some commitment in more recent times to take advantage of whatever limited opportunities have been available to you. Notwithstanding your prior convictions, Mr Kenny submitted that your prospects of rehabilitation are 'favourable'.

104 A long line of authority dictates that the youthfulness of an offender may be a primary consideration in sentencing, and that in such a case, rehabilitation is usually far more important than general deterrence.[7] That is not always the case, however, and the law has recognised that there will be cases in which factors such as youth and rehabilitation would take a 'back seat' to other sentencing considerations.[8] In considering the authorities on the topic in Azzopardi v R,[9] Redlich JA (with whose judgment the other members of the Court of Appeal agreed), stated:

The general propositions which flow from these authorities is that where the degree of criminality of the offences requires the sentencing objectives of deterrence, denunciation, just punishment and protection of the community to become more prominent in the sentencing calculus, the weight to be attached to youth is correspondingly reduced. As the level of seriousness of the criminality increases there will be a corresponding reduction in the mitigating effects of the offender's youth. But only in the circumstances of the gravest criminal offending and where there is no realistic prospect of rehabilitation may the mitigatory considerations of youth be viewed as all but extinguished.[10]

105 There was a recent confirmation of the principle by the Court of Appeal in Siilata v The Queen,[11] a case concerning an offender sentenced for aggravated carjacking who was 18 years old at the time of the offence and 19 at the time of sentence:

True it is that the applicant was young but, as the cases make plain, the more serious the offending, the more the mitigating effect of youth diminishes. Denunciation, general and specific deterrence must have greater emphasis as the seriousness of the offence increases. That must be so in this case.[12]

106 I can indicate that in respect of both of you, I have taken into account the fact that you were quite young at the time of your offending, and are still young, and with quite modest criminal histories. You have most of your lives in front of you. You have reasonable prospects of rehabilitation. I have factored the desirability of fostering your rehabilitation into account in arriving at the appropriate sentence upon you. However, consistent with the authorities, in the circumstances of offending of this seriousness, there are other purposes for sentence which command more prominence.

107 Some weeks after the initial hearing of the pleas in mitigation, the effects of the COVID-19 virus began to be felt around the world. A pandemic was declared by the World Health Organisation and a state of emergency declared in many locations throughout the world, including in Victoria. The effects of the pandemic have been felt throughout the criminal justice and correctional systems.

108 In the case of each of you, the conditions under which you have been held on remand over the last five weeks have become markedly more onerous. All personal visits into prisons in Victoria were stopped on 21 March 2020, with the result that your ability to maintain contact with your loved ones has been substantially curtailed. Educational, vocational and other programs have been cut back or stopped. The ability to maintain religious observance in the company of others, something which is important to each of you, has been stopped. The number of hours during which you are permitted to be outside your cells has been markedly reduced and the prospect of lockdowns is a real one. The normal freedoms which would normally be available to you, albeit in the tightly controlled environment of a prison, are no longer there. The result of all of this is that, on a practical level, the conditions under which you have been held for the last month, are being held now, and will be held for an indefinite period of at least some months into the future, are quite restrictive and onerous.

109 In addition, the change and uncertainty introduced by the COVID-19 pandemic is a source of anxiety for both of you. You are not in a position to control your potential exposure to the virus as would be a person not in custody, and are concerned about the potential effects should the virus make its way into the prison system. Furthermore, you are removed from family and loved ones, and not able to care for them in a practical way. You, Abdi, are concerned for your father who is very unwell and spends a large amount of time in hospital. You, Abukar, have health problems of your own, and worry that the steps required to maintain your blood sugars at appropriate levels may expose you to potential harm.

110 I take into account in sentencing you the relatively harsh conditions under which you have been held for a time, and will continue to be held for some time to come, as well as the additional anxiety you feel as a result of the implications of the pandemic. I note, however, as pointed out by Ms Karamicov, that on present indications, there is every reason to think that these additional burdens of incarceration will exist only for a small proportion of the overall period of time that you will be required by the sentence I pass to spend in custody, a position that is markedly different from the case of a prisoner who, for whatever reason, may be required to spend the entirety of his sentence in the onerous conditions of protection. Also, the prosecutor was correct to submit that the current onerous conditions cannot be permitted to overshadow the other factors which dictate that in your case, substantial terms of imprisonment must be ordered to be served.

111 Sean Duncanson did not make a victim impact statement. That does not mean, of course, that I am not required to have regard to the impact of the offence upon him, [13] his personal circumstances,[14] and any injury, loss or damage flowing directly from the offence against him.[15]

112 Sean Duncanson suffered life-threatening injuries in the attack the two of you carried out upon him, necessitating multiple bouts of surgery and a long period of treatment in hospital and rehabilitation which could only have been exceedingly traumatic and difficult for him. As Mr Pearson frankly conceded on your behalf, Abdi:

Now Sean Duncanson, clearly the injuries have been significant and they have been life changing and they will be with him for the remainder of his life, one would expect...I'm not saying that your Honour is precluded from making findings of fact regarding the impact that this has had upon him for the reason that there is no victim impact statement.[16]

113 Mr Kenny conceded that I can take into account the medical evidence about the injuries received, and that it is apparent from that evidence that Sean Duncanson suffers an ongoing cognitive deficit.

114 The mother of Sean Duncanson, Cheryl Duncanson, made a victim impact statement which was tendered on the plea hearing and read aloud in Court by Ms Karamicov. The statement largely concerned the heartbreaking loss suffered by Ms Duncanson flowing from the death of her son Paul, but also touched on the effect on her of the serious injuries suffered by her other son Sean. In that sense, Ms Duncanson can be viewed as being a victim of your offending against Sean Duncanson.

115 Ms Duncanson described being confronted with the news of the death of one son and the critical injuries sustained by the other as being her 'worst nightmare'. This was especially so in light of the tragic death of two others of her children in 1987 and 1999. She spoke of the considerable trauma caused by the twin events of the death of Paul Duncanson and the brain injury suffered by Sean Duncanson. She could not eat, started to lose weight, and had trouble sleeping. She worried about Sean, ringing him often to see how he was going. She agonised about why this had happened. She also stated that she feared for her own safety, wondering whether one of the offenders might know her address and come after her. She described a state of affairs of coping, but not being as she should be. She noted feeling physically and mentally drained, and spoke of the visits to the hospital to see Sean. Ms Duncanson made mention, too, of the fact that Sean still has flashbacks about the night of the attack upon him, and the fact that he misses his brother so much as they were best mates.

116 I take into account in sentencing both of you the devastating effect your attack has had upon Sean Duncanson, and the reality that he will always carry with him the ongoing physical and emotional effects of that attack. I also take into account the effect of your crime upon the mother of Sean Duncanson, a secondary victim of the crime.

117 You both fall to be sentenced for not one but two crimes. One concerns the serious injury you intentionally caused to Sean Duncanson. The other is the crime of affray which encompasses the unlawful violence used by you both in Castley Crescent which was such as to cause a person of reasonable firmness to be terrified. That unlawful violence encompassed the attack upon Sean Duncanson, but also the attack upon Paul Duncanson which occurred after he had been struck by the vehicle and was already suffering from the serious internal injuries which caused his death.

118 It is apparent that there is a considerable overlap between the two crimes in both timing and conduct. On the other hand, the offence of affray is a separate and distinct offence covering additional conduct and warranting separate punishment.

119 Some degree of cumulation between the sentences imposed for the respective offences is required but in arriving at the degree of that cumulation, I have paid regard to the principles of totality and proportionality in endeavouring to arrive at sentences which are just in each of your cases.

120 You, Abdi, have been in custody since being remanded in custody on 11 August 2018 on an unconnected matter which is still awaiting trial in the County Court. You, Abukar, have been in custody since being remanded in custody on 27 August on the same matter. It was not until 5 February 2019 that you, Abdi, were remanded in custody in relation to the current matters before me. In your case, Abukar, you were not remanded in custody in respect of the present offending until 8 February 2019. I will make a declaration under s 18(4) of the Act in respect of the period of time each of you has spent in custody on the current matters. However, the issue arose during the plea hearing as to the implications of the period you each spent in custody from your initial arrest in August 2018 to when you were charged with the present matters in February 2019.

121 I invited written and later oral submissions on this issue. Mr Karamicov, following the initial hearing of the plea, provided an outline of submissions considering the authorities from R v Renzella[17] onwards. Her submission in her outline and her later oral submission, based on what was said in Renzella and the many cases which have followed it,[18] was that in the case of each of you, it would be appropriate for me to take into account at the time of sentencing you all the time you have spent in custody since your arrest in August 2018 which is not able to be the subject of a declaration under s 18(4) of the Act. She submitted that the authorities dictate that should I take any such period of custody into account in sentencing either of you, I should clearly articulate in my sentence the extent to which I have done so, in order to inform the court which may later come to deal with you for the unrelated offending.

122 In the end, counsel for each of you agreed that I should take into account in sentencing you the full period of time from your remand on the unconnected County Court matter up until the date you were charged with the current offending.

123 It is beyond the scope of the sentences I am in the process of pronouncing for me to dwell for long on the question of whether the authorities would, indeed, justify my doing what I have been asked by the prosecution and the defence to do in relation to this aspect. Suffice to say that in the circumstances, and in accordance with the authorities and the unified position of both sides, I do take into account in sentencing each of you the entirety of the period of time you each spent on remand from the time of your arrest on the County Court matter up until you were charged with the present offending. That will be reflected by a reduction in the head sentence and non-parole period to be passed on each of you.

Current sentencing practices and comparable cases

124 One of the matters I am required by law to take into account in arriving at a proper sentence is current sentencing practices. In seeking to understand these, I have considered, amongst other things, the most recent Sentencing Snapshots from the Sentencing Advisory Council in respect of ICSI[19] and affray,[20] the statistics in respect of both charges on the Sentencing Advisory Council website,[21] and a number of broadly comparable cases. There is a limit to the use of statistics and sentences passed in other cases, particularly in the case of a crime such as ICSI which spans such a wide breadth of criminality. Where comparable cases are concerned, it must be remembered that no sentence passed in any other case amounts to a precedent for the sentence I must pass on each of you. At best, sentences in so-called comparable cases may provide a general guide or impression of the appropriate range. As for the Sentencing Snapshots themselves, I point out that the Snapshot relating to ICSI covers cases only up to the end of the 2016-17 year. As for the one concerning affray, it is even less current, concerns limited cases, and covers sentences passed at a time when wholly and partially suspended sentences were open.

Parity between the two of you/consideration of Ahmed Sharif sentence

125 One of the important considerations in sentencing both of you is the principle of parity.

126 As was stated relatively recently by the Court of Appeal in R v Philp:[22]

The parity principle requires that there be appropriate relativity of sentence between co-offenders. The principle is fundamental to the community's sense of justice, for the reasons which Mason J gave in Lowe v The Queen:

Just as consistency in punishment - a reflection of the notion of equal justice - is a fundamental element in any rational and fair system of criminal justice, so inconsistency in punishment, because it is regarded as a badge of unfairness and unequal treatment under the law, is calculated to lead to an erosion of public confidence in the integrity of the administration of justice. It is for this reason that the avoidance and elimination of unjustifiable discrepancy in sentencing is a matter of abiding importance to the administration of justice and to the community.[23]

127 The appropriate relativity between the sentences to be passed on the two of you is a difficult concept. Importantly, as indicated earlier, I do not consider it is appropriate to differentiate between you on the basis of the seriousness of your offending. That, of course, is only a part of the picture, but an important part. When the other facts and circumstances going towards the proper sentence to be passed upon each of you are considered, the striking thing is perhaps the similarities in your positions.

128 You are both still quite young men, you, Abukar, being two years older. You both left Somalia as refugees, arriving in Australia at a young age. You have both had unfortunate backgrounds, the critical feature in each case being the fact of your having spent six formative years back in Africa during which your access to education was cut off and you were exposed to quite extraordinary trauma which has resulted in each of you, according to expert material, suffering from PTSD. The effect of that period has been far-reaching for each of you. In spite of this and your family responsibility for your return to Africa, you both retain a strong connection with your family and considerable family support. You have similarly sporadic work histories, and the same damaging history of illicit drug use. Each one of you has experienced significant periods of homelessness.

129 In terms of criminal history, you, Abdi, have no prior convictions as such, but convictions for a number of subsequent offences including one assault matter when you were 21 years old. You, Abukar, had some prior convictions at the time of this offending including two for assault which occurred when you were about 19. Your criminal history is more extensive than is Abdi's, although it cannot be described as particularly extensive or especially serious.

130 Each one of you has made good use of your time in custody to complete the limited courses available to you and to commence to come to terms with your drug use and your somewhat tortured past. Each of you has not only the support of your family, but the support of a partner as well. You, Abdi, have the responsibility of a young child.

131 In your case, Abukar, I make allowance for the application of the fifth limb of Verdins, although I note that Mr Kenny did not put much reliance on the issue. I make no such allowance in your case, Abdi. On the other hand, for each of you, I take into account in a general way the mental condition from which you suffer following upon your traumatic period in Africa when you were younger. That seems to me to be a significant matter in the case of each of you.

132 In respect of the Renzella time to which, as I have indicated, I will have regard in sentencing each of you, the periods are so similar as not to warrant any differentiation in the sentence on account of the slight differences.

133 It can be seen that whilst of course there are differences between you by way of personal background and the like, the similarities between your positions are quite remarkable.

134 Neither counsel on your behalf urged me to treat you differently. Mr Pearson on your behalf, Abdi, submitted that I should pass sentences upon you and Abukar which, if not identical, would at least be close to it. He did make the point in your case that you had no criminal convictions at the time of the present offending, whereas Abukar did have some convictions. He submitted that this might lead me to the view that you deserve a 'slightly lesser sentence', but he did not urge that approach upon me, making it clear that he was not 'inviting your Honour necessarily to tinker with the edges'. In your case, Abukar, Mr Kenny submitted that there should be no differentiation between you and Abdi in sentence.

135 Arriving at appropriate relativity of sentence between the two of you is not achievable through some precise arithmetic calculation. I can indicate, however, that I have done my best to arrive at an appropriate sentence for each of you by taking into account all of the relevant similarities and distinctions. Neither the prosecutor nor counsel for either of you urged me to distinguish between the two of you in sentence. In the end, I considered it appropriate that in all of the circumstances, you should receive the same sentence.

136 As for the position as between the sentences to be passed on the two of you on the one hand and that to be passed on Sharif on the other, Mr Pearson, relying on the cases of Farrugia v R[24] and Green v The Queen; Quinn v The Queen,[25] submitted that the broad principle of equal justice would require some relativity between the respective sentences. Mr Kenny agreed with that submission. Neither of them, however, made any clear submission to me as to whether the two of you should receive longer, or shorter, terms of imprisonment than that to be imposed upon Sharif.

137 The position of the prosecutor was that even if there was a requirement under the principle of equal justice to have regard to the sentence in Sharif when imposing sentence on each of you, because of the many differences between the crimes for which you and Sharif are to be sentenced, the weight to be accorded to the comparison would be 'extremely minimal'.

138 I do not accept the submissions made by Mr Pearson and Mr Kenny in relation to this issue. In my view, the authorities would not justify the view that I should regard the sentence to be passed upon Sharif as one of the matters to take into account in passing sentence upon each of you. To my mind, that would be extending the principle of equal justice too far. True it is that all three of you were friends of a similar age, you all arrived at and left the scene of your respective crimes together in the same vehicle, your offending occurred in the aftermath of the same lead-up events and in the same location, and your respective victims were brothers. Having said all of those things, however, not only were you not co-offenders in the true sense, or participants in any common criminal enterprise, but your respective offences were entirely different in nature, and quite unconnected. In your case, you have been found guilty of a serious assault carried out with the use of weapons. You intentionally caused serious injury to your victim by deliberately and violently assaulting him with no lawful excuse. You also participated in an extravagant display of violence in a public street that founded your conviction for affray. Sharif, on the other hand, committed no assault whatsoever, and took part in no affray. He brought about the death of Paul Duncanson through his grossly negligent driving, but it is not alleged against him that he intended any harm of any sort to the victim of his crime.

139 In my view, when I come to pass sentence upon you for your crimes, the sentence I pass on Sharif should not be amongst the many matters I am required by law to take into account in arriving at the appropriate sentence.

140 Even if that conclusion is wrong, it seems to me that the many differences between the crimes you committed and that committed by Sharif and the surrounding circumstances, including your respective pleas to the charges, would dictate that notably different sentences would be passed upon you compared with that to be passed upon Sharif.

141 As I indicated earlier, the offence of ICSI of which you have both been found guilty is a serious example of that serious crime, the maximum penalty for which is 20 years' imprisonment. Whilst carried out in a very particular set of circumstances, and without premeditation, yours was a crime committed in a public street upon a man who, by the time your attack proceeded any distance, was outnumbered and helpless. The evidence indicates that he was the subject of a large number of individual applications of force, with weapons, fists and feet. He sustained life-threatening and life changing injuries. The affray, too, was a serious enough example of that crime, involving overtly violent conduct by the two of you and seemingly at least one other man in what should have been a quiet suburban street, in view of members of the public.

142 To my mind, just punishment, denunciation, general deterrence and protection of the community are important sentencing considerations. You must be punished in a way which reflects the seriousness of your offending. The sentence of the Court must make it perfectly clear that the Court deplores the sort of extravagant violence by which your offending was marked. In respect of general deterrence, the sentence must be such as to bring it clearly home to others who might be minded to take part in violent confrontations, even those carried out in response to provocation, that such conduct will be met with strong punishment. As for protection of the community, the sentence I pass upon each of you is intended to reflect that need as well.

143 It is also important that you be deterred from any future violent offending. You each have a modest history of violent offending and some further experience in the criminal justice system. Your behaviour in this case which led to the jury verdicts was an extreme over reaction to an unexpected situation which arose in front of you. You must understand that such conduct will not be tolerated by courts.

144 As for rehabilitation, that, too, is important in your case, albeit that the seriousness of your offending means that it must take a back seat to other considerations. That is not to say, however, that I have not borne strongly in mind the fact that you are both still young, that you have your whole lives in front of you, and that your prospects of rehabilitation are reasonable. I intend to pass a sentence upon each of you which will provide the chance of a significant period of supervision on parole, but I note that both the head sentence and the non-parole period must constitute an adequate response to the purposes for which sentence is passed upon you.

145 Dawuud Abdi, for intentionally causing serious injury to Sean Duncanson, you are sentenced to be imprisoned for a period of 6 years.

146 For affray, you are sentenced to be imprisoned for a period of 2 years.

147 The sentence on the charge of intentionally causing serious injury is the base sentence.

148 I direct that 9 months of the sentence imposed on the charge of affray be served cumulatively upon the base sentence.

149 The total effective sentence is therefore imprisonment for a period of 6 years and 9 months.

150 I fix a period of 4 years and 6 months during which you will not be eligible to be released on parole.

151 I declare a period of 450 days up to and including yesterday, 29 April 2020, 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.

152 Salah Abukar, for intentionally causing serious injury to Sean Duncanson, you are sentenced to be imprisoned for a period of 6 years.

153 For affray, you are sentenced to be imprisoned for a period of 2 years.

154 The sentence on the charge of intentionally causing serious injury is the base sentence.

155 I direct that 9 months of the sentence imposed on the charge of affray be served cumulatively upon the base sentence.

156 The total effective sentence is therefore imprisonment for a period of 6 years and 9 months.

157 I fix a period of 4 years and 6 months during which you will not be eligible to be released on parole.

158 I declare a period of 447 days up to and including yesterday, 29 April 2020, 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.

[1] The jury found Abdifatah Sharif not guilty of intentionally causing serious injury, recklessly causing serious injury, and intentionally causing injury. They were unable to reach a verdict in respect of the charges of recklessly causing injury and affray. He is due to face a re-trial in the County Court.

[2] A displacement of the brain mass to the right as a result of elevated intracranial pressure.

[5] [2007] VSCA 102; (2007) 16 VR 269.

[6] There is considerable uncertainty about your age. Counsel on the plea said that you were aged 25 'or thereabouts', having turned that age on 1 January this year. On my calculation, if your birth date was 1 January 1994 as asserted in Court, your correct age now is 26.

[7] R v Mills [1998] 4 VR 235.

[8] R v Wright [1998] VSCA 84 [6]; Director of Public Prosecutions v Lawrence [2004] VSCA 154; (2004) 10 VR 125 [60].

[9] [2011] VSCA 372; (2011) 35 VR 43.

[11] [2019] VSCA 277.

[13] Sentencing Act 1991, s 5(2)(daa).

[14] Section 5(2)(da).

[15] Section 5(2)(db).

[17] [1997] 2 VR 88.

[18] See, for example, R v Wade [2005] VSCA 276; and Karpinsky v The Queen [2011[ VSCA 94.

[19] Sentencing trends in the higher courts of Victoria , 2012-13 to 2016-17. June 2018, No. 213.

[20] Sentencing trends in the higher courts of Victoria, 2010-11 to 2014-15. June 2016, No. 191.

[22] [2017] VSCA 320

[23] Ibid [5] (Maxwell P and Croucher AJA) (citations omitted).

[24] [2011] VSCA 24; (2011) 32 VR 140.

[25] [2011] HCA 49; (2011) 244 CLR 462.