R v Athuai [2007] VSCA 2

"1. The sentence of 22 years with a minimum term of 17 years insufficiently reflects the appellant's youth and prospects of rehabilitation.

2. The learned sentencing judge placed too much weight on the fact that the appellant was on bail at the time of the offending.

4. The sentence is manifestly excessive.

5. The learned sentencing judge erred in finding that the appellant displayed manifest pleasure while stabbing the victim."

6 The first and fourth grounds require consideration of the personal circumstances of the appellant. As I have said, he was born in Sudan. His early life on the continent of Africa was difficult. The appellant and his family were poverty-stricken and subject to racial discrimination. When the appellant attended secondary school in Brisbane he suffered racist taunting and bullying by other boys. On one occasion he was beaten unconscious. The appellant's treatment caused him to seek the company and protection of other Sudanese boys. Shortly after the appellant's family arrived in Melbourne, his older brother was killed in a motor car accident, in which another brother was severely injured. The appellant's father went to Warrnambool to work, leaving the appellant's mother to support the family by herself. The appellant's mother was diagnosed with breast cancer and underwent surgery. Although the appellant was unable to attend school because of the time of the year at which he arrived in Melbourne, he did attend a learning programme for Sudanese youths.

7 The sentencing judge made the following relevant findings:

• The appellant had no cause to attack the deceased.

• He did not act in defence of himself or others and was not provoked.

• The attack was premeditated.

• When the appellant and his friends ran across the bridge they intended to inflict violence on the deceased and his companions.

• The appellant formulated the intention to stab the deceased while he was wrestling with the deceased and at a short and distinct time before he did so.

• The use of the knife was not an action committed on the spur of the moment but the product of calculation and some forethought.

• The appellant and his companion were larger and stronger than the deceased.

• The appellant used a weapon while the deceased was unarmed, and used the weapon with a maximum of surprise and ferocity.

• The repeated blows inflicted upon the deceased were accompanied by significant force.

• Five days before the murder, the appellant had been searched by a policeman, who found a large carving knife secreted in the appellant's pocket. The policeman confiscated the knife and warned the appellant that it was illegal to carry a knife.

8 Ground 2 arises from the fact that at the time of the commission of this offence the appellant was on bail after being charged with the offences of armed robbery and assault occasioning actual bodily harm. It was alleged that in the robbery the appellant used a knife. The sentencing judge said:

"You have not been tried on any of those offences. Accordingly, I do not take the facts alleged against you into account. However, it is the fact that you were on bail at the time of the murder in September 2003, which is of particular concern. It indicates a blatant disregard by you for the system of law under which bail was granted to you. It suggests that you have small regard for the law and little attention of obeying its command. To that extent, and in that way, the fact that you committed this murder while on bail does undermine, to some extent at least, any confidence in your ultimate rehabilitation.

9 Counsel for the appellant submitted that the sentencing judge's finding should not have been made with respect to a person who was not a mature adult but a Sudanese youth in an alien culture, who had been raised in circumstances of extreme deprivation and violence. He also submitted that, by rehearsing the facts and canvassing them in the course of the plea, the sentencing judge appears to have taken those facts into account.

10 In my opinion the ground has not been established. The appellant's youth and antecedents did not prevent him understanding the significance of being formally charged and admitted to bail. In my opinion his Honour was entitled to conclude that the appellant chose not to treat the law with any respect. That circumstance had limited significance having regard to the appellant's youth and background, but the sentencing judge said that he was not sentencing the appellant for offences of which he had not been convicted, and I do not agree that the fact that he referred to these matters was an error, for they were of some significance.

11 With respect to ground 5, when the attack was launched, the appellant was not in fear of the deceased, he was not angry with the deceased, and he stood to gain no material advantage from killing the deceased. No motive for the murder was advanced by counsel who appeared for the appellant at the plea. Notwithstanding that the deceased was an Arab immigrant youth, there is no suggestion that a motive for the killing is to be found in the background of the appellant and his victim. There was direct evidence that the appellant was smiling when he stabbed the deceased. His smile was not the product of amusement. In my opinion, the sentencing judge properly concluded that the appellant derived pleasure from his attack upon the deceased.

12 Counsel for the appellant placed his client's youth at the forefront of his submissions with respect to grounds 1 and 4. While the crime itself was serious indeed, attended by circumstances which were disturbing, the appellant was a teenager and the product of a culture of violence and deprivation. The appellant's youth should have rendered his rehabilitation a consideration of the first importance.[1] In fact, the sentencing judge did not find that the appellant was irredeemable. He said that he had been a diligent student, well thought of by those who conducted the learning programme upon which he was engaged before the offence, and had undertaken courses while on remand; so that his Honour was able to say that there were "some grounds for confidence for your rehabilitation", although his Honour also expressed some reservations as to the appellant's prospects of rehabilitation.

13 In my opinion the sentence imposed upon the appellant failed to reflect the appellant's youth and its consequences. Those matters seem to have been swamped by the circumstances of the offence, and in my view that constituted error. Accordingly, in my opinion the sentence imposed below should be set aside. I would re-sentence the appellant to be imprisoned for a term of 18 years and fix a minimum term of 14 years before the appellant is to be eligible for parole.

The sentence passed below is set aside and in lieu thereof the appellant is sentenced to be imprisoned for a term of 18 years.

It is declared that the period of 1209 days is to be reckoned as already served under the sentence and it is ordered that the fact that that declaration was made and its details be noted in the records of the Court.

[1] See R v Mills [1998] 4 V.R. 235 at 241, per Batt, J.A.