R v Lual

Objective seriousness

1. The elements of the offence include the Breaking and Entering of a Dwelling and Committing the Serious Indictable Offence of Reckless Wounding. The circumstance of aggravation is being in company: s112(2) Crimes Act 1900 (NSW).
2. The offence occurred in the home of the first victim. A weapon was used, and apart from the wounding itself, there was considerable violence. The offence appears to have had no planning whatsoever. It appears that the weapon used may have been picked up in the premises. No explanation, rational or otherwise, has been advanced for the commission of the offence.
3. The Crown submit that this matter falls slightly below the middle of the range, taking into account only objective factors. Mr Fraser, for Lual, says it falls just below. There is no thus difference to adjudicate between the parties here, but my focus must be on at the seriousness of what occurred, not a label. So serious was this offending and its circumstances and the consequences, that it is conceded that only a custodial sentence of some length can be imposed. No right‑thinking person would think otherwise.
4. I take some guidance from the maximum penalty of 20 years, and the standard non-parole period of 5 years. Content must be given to that standard non-parole period.
5. The assault saw a 'Good Samaritan' going to help his neighbour, leaving with a broken nose and other consequent injuries: s 59(2)Crimes Act (NSW). He wrote a victim impact statement to the Court. In it, he said that he feels more apprehension for his safety, and his sleeping has been disturbed. He now feels much more insecure in his own home, and he told me of the need to rely on friends for attendance at medical appointments, and how the fracture, while it is now healed, has caused him discomfort for a month and has affected his breathing at certain times.
6. The absence of a victim impact statement from the other victim does not in any way mitigate.

Structure of sentence

1. There are two matters for sentence. There are two victims. There should be some accumulation as between them, to reflect the different circumstances of the offending and the fact that there were two victims.
2. His plea of guilty came late. He is entitled to a reduction of 10% for the utilitarian value of the otherwise appropriate sentences.

Parity

1. I have previously sentenced Mr Kegan: R v Keegan [2022] NSWDC 715. Mr Keegan pleaded guilty at an early opportunity and received a discount in the otherwise appropriate indicated sentences of 25% of the utilitarian value of his plea. I imposed an aggregate sentence of 4 years and 6 months, with a non-parole period of 2 years and 6 months. For the assault, I indicated the sentence of 1 year and 1 month, for the break and enter, I indicated the sentence of 4 years and 1 month, with a non-parole period of 2 years, 2 months.
2. This sentence must be determined having regard to the circumstances of both co-offenders, and their respective degrees of culpability. Like must be compared with like. Different personal and criminal histories can justify real differences in the terms each serve in prison. This principle is known as parity and is a classic example of the needs so far as possible to ensure equal justice.
3. In like cases, that principle can also encompass the structure of a sentence and its non-parole period: Lau v R [2010] NSWCCA 43.
4. Here, the fact situation for Kegan, so far as nominating who had the knife, differs from the fact situation here. Looking at the material before me in this sentencing exercise, there is little, if anything, to distinguish the two offenders, one from the other.
5. Both were engaged in a joint criminal enterprise to commit a serious offence. As a consequence of that joint criminal enterprise, a citizen was wounded, and another citizen had his nose broken. Their roles while different but both were equally involved.
6. Sadly, both young men have backgrounds that moderate their moral culpability They must be taken into account. Their backgrounds are quite different, but both require a degree of understanding and leniency to be extended to them.
7. That said, the purposes of sentencing do not all point towards leniency. Courts by the severity of the sentences that they impose, have a duty to attempt to protect the community by letting both this offender, and others who would be tempted to offend as he did, know the consequences of such severe offending, and that consequence is that they lose their liberty and lose it for a considerable period.

The case for the offender

1. The material in support of Lual includes; a letter that he wrote to the Court, a support letter from a friend and mentor, and the report of a neuropsychologist, Amanda White.
2. Deng Lual was born in South Sudan. He and his family were refugees living in a refugee camp prior to their migration to Australia in 2006. The material before me indicates that while he was very young he still has some memories of the violence and trauma of that camp.
3. Attempts were made by his family to settle in Australia but his father's demons lead to his abuse of alcohol and violence in the home. There was a subsequent separation from the family, and they spent time in refuges and then moved to another state.
4. The history before me indicates that Deng had considerable problems adjusting to life in Australia, and considerable problems at school. He soon fell in with those who commit offences. He has a history of offending, even back to when he was quite young.
5. He wrote a letter to me which sets out, his history, his background, and indicated some of the problems he had fitting in when he was young. He said how scared he was both at school, but more particularly at home.
6. Although, he found love and support from the South Sudanese community, there were a lot of traumas in his life. He has had the assistance of people, in particular his mentor, who has given him some safety.
7. He has had time during his period in custody to think about what his future is to be. He is a father, and he would like to engage with his son.
8. He has solid goals in relation to achieving literacy and numeracy and in obtaining skills that will help him in the workplace. He would like to train as an athlete. He would like to be a father to his son, and with assistance deal with his traumatic history as best he can.
9. His mentor sets out the support that he has given and is prepared to give. He will help him do everything he can; as he has in the past. Lual has been able to work in the community and has that ability, I am sure, in the future, if given the appropriate support.
10. he tragic aspect of this offence is that he did not turn to his mentor before the commission of this offence. Rather, he fell in with others and another young man that committed the offence.
11. Ms White sets out Lual's psychosocial history, which I have briefly summarised. She puts that history in the context of her own expertise, and her testing. A neurophysical assessment, reveals that there are a number of impairments in cognitive function. She identified a number of impairments in cognitive function, in the low or borderline, or extremely low range. Part of that, she attributes to a traumatic brain injury the offender suffered as a young adult. He was hospitalised, and details of that injury are set out in the report.
12. She also notes that his history of substance abuse, particularly spanning periods of critical neurodevelopment, and longstanding psychological trauma, all, she says, contribute to his current presentation and cognitive difficulties. She concludes at p 11 of 14, par 6, of her report, his overall level of functioning is currently considered to be in the extremely low to borderline range on current testing.
13. However, it seems he may function better day to day, at least in some aspects, although this was outside the scope of the current assessment. She also reports a longstanding history of alcohol abuse, going back to when he was 12 years old and too young to make rational choices.
14. At par 8, p 12 of 14, of her report she puts forward a sensible appropriate case plan or treatment plan. I will have a copy of the report forwarded by the registrar to Community Corrections with the warrant. Lual will need long term intensive psychological trauma focused, and culturally appropriate counselling. That treatment will need to be oversighted by a psychiatrist.
15. He will need regular GP attendances, and programs that might assist him in developing pro-social relationships. He needs to seek legal advice in relation to access to his son, and any contact needs to be based on legal advice, because all the material before me is reflected in his criminal record, which is for his young age, extensive.
16. This offence shows that he is very impulsive. For that impulsivity, while it may have and appears on balance to have, a basis in his long-term trauma and cognitive deficits, has led him into trouble time and time again, and he will need to learn as he matures to manage those underlying problems. Because if he does not, he will return to Court.
17. He is young, he has still a lot of growing up to do. The Courts do recognise that the young and immature have a potential for growing emotional maturity as they age, and that impulse control can develop progressively as a person ages.
18. Lual has suffered significant and various traumas both as a refugee and as a child in a home due to his father's alcoholism and subsequent violence. He has a history of dislocation and at times abandonment by family members. Lual has early exposure to the use and abuse of alcohol, and periods in juvenile detention. He has cognitive impairment; which must be taken into account.
19. All of those factors ameliorate his moral culpability and at least, in part, reduce the need to denounce the crime. He has not had the background that many in our community would expect, and that means that he is less a vehicle for general deterrence than those who did not have his disadvantages.
20. That said, care needs to be taken because ultimately, sentences are about community protection. And if the current trajectory continues, courts will have to remove Lual from the community for extended periods.
21. Here, there are a number matters raised that require reduction of his moral culpability, including childhood deprivation, childhood trauma and his underlying mental health issues: Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37; Nasrallah v R [2021] NSWCCA 207; Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194.
22. All of those matters can and will be taken into account.
23. There is reason here in his background and the need for him to be supervised for as long as possible, for there to be a significant finding of special circumstances. The principle of parity also compels that result.
24. His criminal record does him no credit, and I note that there is an aggravating feature on sentence in that he was on bail and a Community Corrections order.

Submissions

1. In submissions, Mr George, for the Director of Public Prosecutions, cautions appropriately about the need to be guarded about Lual's prospects, given these offences occurred while Lual was subject to two types of conditional liberty and that he breached his bail during the remand period. I will be cautious, but he is still young enough and he has strong community support, and there is a program in place for when he is released. If he keeps to the promises, he made to himself in his letter to me, and to others, he may be able to turn his life around. If he fails to do so and fails to take the support that has been offered to him, he can look forward to lengthier periods in custody.

Remorse

1. I can detect in the material before me, no particular remorse for either of his two victims. But given his history of cognitive impairment and other history, it is clear that his focus has to be on improving himself. And then if he improves himself, he may eventually gain some insight into the impact of his crimes on others.
2. Lual's plea of guilty did save the Court the cost of a trial and did save the victims from having to give evidence. But, as Mr George points out, the case against him was fairly overwhelming; so it appears he took a long time to accept responsibility for his crime.

Synthesis

1. I will give full weight to Lual's background. I will attempt to structure the sentence, as I did with his co-offender Kegan, to enable him to be supervised and to prove himself in the community. But the minimum time he must spend in custody, has to bear some relationship with seriousness of the offences he committed and extract of appropriate retribution.
2. Many of the principles that call for harsher sentences, can and should appropriately, be moderated in a case such as this. Nevertheless, there must be a proper sentence that reflects the seriousness of the crimes he committed.

Orders

1. In relation to both matters, there will be an aggregate sentence. The indicated sentences reflect a reduction of 10%. There will be a finding of special circumstances for the reasons outlined.
2. Additionally, while he was on remand for this sentence, there was a matter that was dealt with in the Local Court. The matter he was on bail for, for which he received a 6-month sentence. There must be some independent punishment for that offense. The calculations I will be giving indicate that had it not been for that other matter, his custodial period would have been calculated as starting on 5 April 2022. I propose to start this sentence on 5 July 2022.

Indicated sentences

• For the aggravated offence of Break and Enter, I indicate a sentence of 4 years and 10 months with a non-parole period on that, so, that will be 2 years and 3 months.
• For the Assault Occasioning Actual Bodily Harm offence, I indicate a sentence of 1 year and 3 months.

1. There will be an aggregate sentence of 5 years and 2 months to commence on 5 July 2022. The non-parole period taking into account totality, will be 2 years and 8 months starting on 5 July 2022. Which means Lual will be eligible for consideration for parole on 4 March 2025.
2. So, 2 years 8 months, eligible for consideration of parole on 4 March 2025. A balance of 2 years and 6 months, which will commence on 5 March 2025. Total sentence expiring on 4 September 2027.
3. So, indicated sentence, 4 years 10 months, 2 years 3 months, 1 year 3 months for the assault. Total sentence, 5 years 2 months, starting on 5 July 2022, non-parole period 2 years 8 months, 5 July to 4 March 2025. Then, it's 2 years and 6 months on parole.

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