R v Z N [2012] VSC 616

3 The crime for which you now stand convicted is both brutal and senseless. On Tuesday 6 September 2011 you stabbed Latjuor Gatkuoth to death by stabbing him a number of times to the upper body with a broken glass bottle. The stabbing took place on a landing in a stairwell between Levels 1 and 2 of the Dandenong Plaza Car Park near Clow Street, Dandenong. Mr Gatkuoth then fell four or five metres into the basement of the stairwell.

4 Both you and Mr Gatkuoth were part of a group of young men of African background who spent much of your time around the Dandenong Plaza area. In opening the case the prosecution set out in detail some of the background to the events.

5 On the evening of Sunday 4 September, you and your friends including Mr Gatkuoth were consuming alcohol and listening to music in the reserve in Stuart Street, Dandenong. According to a number of your friends, you approached Mr Gatkuoth and slapped him in the face trying to get him to fight you but he refused. You also produced a pair of scissors at some stage and threatened Mr Gatkuoth. You told your friend Torit Dak that you wanted to kill Mr Gatkuoth because he had pissed you off.

6 On Tuesday 6 September you, Mr Gatkuoth and others were at Dandenong Plaza. Your group went to the Safeway Liquor store where it was observed by CCTV footage that you and another young man went into the store. The other young man purchased a cask of wine and you purchased another bottle of alcohol. The group then went to the car park stairwell to consume the alcohol. That was at about 6.00pm. There were about 11 of you in the group all up, other alcohol was obtained and a number of casks of wine were consumed prior to the group moving off to the Greater Dandenong City Library where you entered the library at 7.26pm carrying two bottles of alcohol. You were asked to leave which you did but your group remained drinking outside the library. At some stage Mr Gatkuoth got into a fight with Chol Deng on a nearby grassy area. Police attended and your group moved on and most members of your group went to a nearby KFC.

7 Some group members later went to the Reading Cinemas on Level 2 of the plaza. When Kuju Wazin went to the bus stop on the northern side of Clow Street, he saw you alone in the car park when he crossed the road he saw you were drinking cask wine in the stairwell. You returned with him to the bus stop where the two of you were approached by Mr Gatkuoth. Mr Wazin then noticed you had a swollen lip which you said had been caused by Mr Gatkuoth punching you in the face. You threw the bladder of the wine cask onto the ground and said to Mr Gatkuoth, "I will stab you in front of the police." Mr Wazin calmed you down and picked up the bladder of the cask and threw it into the bushes.

8 Another friend, Emmanuel Akang came by and spoke to you and left. Mr Wazin left on the bus leaving you and Mr Gatkuoth alone.

9 At about 10.40pm, you approached two police officers at the corner of Clow Street and Sleeth Avenue and told them that you had found your friend around the corner and you did not want him to die. You were carrying a blood stained jumper which the police had observed you wearing earlier. You said it was Mr Gatkuoth's. You took Constable Lavars to the car park stairwell where he found Mr Gatkuoth in the basement in a pool of blood. He had no upper clothing and it was obvious he had been stabbed to the upper body, chest and neck.

10 Crime scene examiners found blood along the stair rails and spattered blood and bloody shoe prints throughout the stairwell. On the landing between Levels 1 and 2, a large amount of blood and broken glass from both a Bundaberg Rum bottle and Victoria Bitter bottle were observed and recovered. A number of cask bladders, boxes, cigarette butts and a broken DVD were scattered about the stairwell.

11 You had walked through the passageway on Level 2 of the car park at about 10.30pm. You left a trail of blood which had come from your cut hands and arm which you were later to say had been caused in the cells when it had not.

12 When a post mortem was performed on Mr Gatkuoth, he was found to have multiple stab wounds to his upper body and neck and trauma to the head caused by blunt force. His death had been caused as a result of those injuries.

13 When you were interviewed by the Homicide Squad on 7 September, you said that you had been drinking with Mr Gatkuoth and left him to purchase more alcohol from Safeway. When you had returned, Mr Gatkuoth was not where you had left him and you found him lying on the floor and that you went to get the police.

14 You said that your injuries had been caused when you were skateboarding whilst intoxicated the previous Friday

15 You participated in a re-enactment on 8 September where you largely repeated the earlier version you had given to the police.

16 Your blood stained palm prints were found in the stairwell and the clothing which you had been wearing on 6 September was found to have both projected and spattered blood on it.

17 Mr Gatkuoth was born in South Sudan on 23 March 1991 and was 20 at the time of his death. He had come to Australia via Egypt in April 2003. He lived with his family. His background is somewhat like yours. He had a blood alcohol reading of 0.39 at the time of his death. I raise that matter not as any criticism of him but to indicate what role the use of alcohol had in your group. That blood alcohol indicates a familiarity with alcohol and indicates that it is likely that you also had a high blood alcohol as you had been drinking in the same group.

18 I received victim impact statements from Mr Gatkuoth's mother and father, Ruach Deng and Aduk Opin which were read to the Court. Their loss is profound. The material provided was brief but very moving. Their loss is all the more devastating because the family came to Australia to escape violence and to offer a new beginning in particular to their children. Whatever punishment I impose cannot diminish their loss.

19 On your plea I received reports from Dr Sarah Farrand, Psychiatrist and Mr Patrick Newton, Psychologist. Mr Newton also gave evidence. I will refer to that material later.

20 It was pointed out on the plea that you could have chosen to run away from the scene but you remained and attempted to get assistance and that is true. I am prepared to accept your memory of the events is at best patchy and that you were significantly affected by the alcohol you had consumed. Your plea of guilty is very important because many in your situation would have sought to have brazened the matter out. I am satisfied that you are remorseful for what you have done and this is a case where the plea of guilty does support that fact.

21 You have been involved in the Childrens' Court having been charged with offences which occurred on 20 August 2010 which involved an assault (not by you) with a baseball bat. Those matters are contested whether they lead to conviction or not, the conduct is generally an indication of an aimless life style and abuse of alcohol.

22 You were involved in an incident on 14 August 2011 where you attacked a man with two empty beer bottles which you smashed over his head and threatened to kill him. You rang 000 and said that you were going to hurt the man for looking at you in a strange way. You were under the influence of alcohol. It is likely that you will plead guilty to those matters. The events were less than a month before the murder and there are some similarities in your conduct. You do not appear to have taken any lesson from it.

23 I treat the material as part of your background. Neither event constitutes a prior conviction in a conventional sense and I do not use it as a matter of aggravation of sentence.

24 As I have already observed, you are now 19. You were born in Sudan during the second Civil War. In that context you were exposed to violence from an early age. Your biological father was killed in the war when you were about two, your mother re-partnered and you have grown up recognising Mr Okwon Ajobwong as your father. Your family fled to Egypt when you were six and after about three years in a refugee camp your family came to Australia in 2002.

25 Your experiences in that part of your life were unpleasant and you do not like reflecting on them. You had some rudimentary education before coming to Australia and you attend Le Page Primary School, Cheltenham Secondary School and Frankston High School. You left school about halfway through Year 12 and you were considering taking up a TAFE course when you were arrested. You have successfully completed a number of courses at the Youth Justice Centre on remand and eight certificates were tendered to me on the plea. You have impressed those you have come into contact with in the Youth Justice System and I have received a report which says that you would be suitable to continue in that system. I regard your prospects of rehabilitation as good. You have strong family support and a particularly good relationship with your two youngest sisters (you have three others sisters living in Australia).

26 You believe that your conduct has made life difficult for your family in the Sudanese community and that is yet another unfortunate aspect of your offending but something which has an effect on you.

27 I need to say something about your psychiatric and psychological background. Dr Farrand, a psychiatrist for the Royal Childrens' Hospital Clinic who had been on rotation seeing patients at the Parkville Youth Justice Precinct, saw you there between February and July until her rotation finished. You formed a good professional relationship with her. Dr Farrand was asked to express her opinion about you in response to direct questions and she said in her report of 5 September 2012 which was tendered on the plea:

Details of drug and alcohol abuse both before and after arrival in Australia

I am not aware of any alcohol or other drug abuse prior to [ZN}'s arrival in Australia. This seems reasonable given his age at the time he migrated.

[ZN} is quite open about his previous heavy alcohol use. His pattern of drinking has varied from heavy binging, to drinking on a daily basis with friends from school. [ZN}'s drinking appeared to be most often with peers, usually drinking with friends from school. I was not able to elicit a history consistent with alcohol dependence.

[ZN} has previously seen a drug and alcohol counsellor for approximately 8-10 months and with whom he had a good relationship. He reports that he was able to achieve abstinence during this time because he gave the counsellor his word. [ZN} reports that because he was doing so well with abstaining from drinking, his counsellor told him she did not need to see him anymore. Very soon after this [ZN} resumed drinking. [ZN} reports occasional cannabis use prior to being remanded. I am not aware of any other illicit drug use.

Does this history admit a causal link between his experiences in Sudan and his abuse of alcohol in Australia?

Despite seeing [ZN} weekly over five months, I was able to glean only a little knowledge of his direct experiences in Sudan. The information available is that [ZN} lost his father in the war at a young age. [ZN} was exposed to violence and glorification of violence from a young age. This included early exposure to weapons and beginning to use guns from the age of six years. [ZN} also experienced daily threats to his safety when living in Egypt.

[ZN} has repeatedly reported that he does not remember anything from his childhood in Sudan. This is suggestive of traumatic experiences, which have been shown to disrupt the normal formation of memory. Normally one expects the laying down of autobiographical memories from the age of 2-3 years.

[ZN} is at higher risk of alcohol abuse and other substance use disorders given his trauma history. Substance use disorders are multifactorial in their aetiology, and in [ZN}'s case his alcohol abuse is likely to be influenced by other factors, such as peer group, boredom, other mental health issues, and lack of gainful employment/study.

Does [ZN}'s history (and that of all of his social group) of almost daily abuse of alcohol admit a diagnosis that he was self-medicating in an attempt to alleviate the symptoms of (say) post-traumatic stress disorder or a major depressive illness?

[ZN} did not meet the criteria for a diagnosis of major depression according to the DSM-IV TR (Diagnostic and Statistical Manual of Mental Disorders fourth edition, text revision) Criteria. He does however suffer from a number of depressive symptoms which are distressing for him.

These include:

i. Intermittent low mood. This is likely the result of his current situation, including the uncertainty of being on remand, and the possibility of a lengthy custodial sentence.

ii. Feelings of wanting to 'give up', which have at times manifested as suicidal ideation.

iii. Low self-esteem. [ZN} perceives himself as a 'bad person' and believes that others also perceive him this way, in part due to his history of offending and fighting.

[ZN} also suffers from post-traumatic stress symptoms, consistent with Chronic Post-Traumatic Stress Disorder (PTSD). The PTSD symptoms [ZN} experiences include:

i. Exposure to traumatic events. This has been reported in [ZN}'s early experiences in Egypt, and his history is suggestive of trauma in Sudan also, although the latter has not been confirmed.

ii. [ZN} experiences recurring and distressing nightmares and has done so for many years.

iii. [ZN} avoids talking about his childhood, often changing the subject and refusing to discuss this aspect of his history. He also has difficulty recalling childhood memories.

iv. Whilst [ZN} does not have overt symptoms of increased arousal such as hypervigilance, he does have longstanding difficulties with sleep and anger.

v. His symptoms are longstanding and cause ongoing distress and impairment

vi. He also experiences dissociative episodes, which are not specifically part of a post traumatic stress disorder diagnosis, but are recognised sequelae of traumatic experience.

I did not seeing [ZN} prior to his detention in the Remand Unit of PYJP, therefore I cannot assess the psychological reasons underpinning his alcohol use prior to coming into custody. It is common in young offenders to observe their substance use as an avoidant coping strategy, a way of dealing with both internal and external conflicts and stressors. As described above, alcohol abuse and other substance use disorders are multifactorial and in [ZN}'s case, likely to be influenced by other things, including 'normal' adolescent behaviour.

And

Is it likely that any impaired mental functioning (quite apart from any intoxication) make him disinhibited? Or obscure his intent to commit the offence?

I am not in a position to comment on whether [ZN} was mentally impaired at the time of the alleged offence. My contact with [ZN} commenced approximately six months after the alleged offence. Given that [ZN} was on remand, we discussed prior to the commencement of therapy that any discussion of the alleged offence may be recorded in his file and potentially used as evidence. As such I do not have any information of [ZN}'s mental state at the time of his alleged offence.

In a broader sense, there are likely to be aspects of [ZN}'s personal history that contribute to him at times making poor judgments and decisions. [ZN}'s early experiences in childhood have resulted in him seeking his own territory, which can be a safe and protected place. He has learned from an early age that aggression and physical superiority can give him this, as well as a sense of freedom.

It is also clear that [ZN} suffers from dissociative episodes. There were two sets of circumstances which seemed to trigger these dissociative symptoms regularly, both being intense emotional states. Firstly, [ZN} gave several historical reports of dissociative symptoms, when becoming angry and getting involved in fights in the community. Secondly, [ZN} experienced dissociative episodes whilst in custody, usually when he was overwhelmed with distressing or stressful thoughts. These periods were usually characterised by lack of memory and loss of awareness of time and his behaviour. They could lead to odd and out of control behaviour, such as turning his room upside down. At other times there appeared to be gaps in his memory where he would be observed to be sitting on his bed. These episodes were sometimes associated with perceptual disturbances. [ZN}'s propensity to dissociation is likely to be linked to his past traumatic history.

Does [ZN}'s background, maturity and psychology enable one to opine that he will likely find adult goal more burdensome that the ordinary Australian prisoner?

How might gaol affect him (or his development or treatment) adversely?

[ZN} is a refugee from Africa who has had a past history of significant trauma as outlined above. Under these circumstances it is very likely that he will find the experience of imprisonment, particularly in an adult prison, even more traumatic than a young person who had not had similar experiences.

Incarceration will certainly affect [ZN}'s development adversely, as it would any young person of his age. Late adolescence is a period in which many developmental milestones are navigated, in particular, pursuing further education and vocational training, attaining commencing employment, developing intimate relationships, and developing a sense of individuation and identity. The longer the period of incarceration, the greater the impact on these milestones.

28 Although I heard evidence from Mr Newton on the plea which was helpful it is easier to summarise his opinions by reference to the report of his which was tendered. He said under the heading:

Substance Use

11. [ZN} reported that he had commenced drinking alcohol at around age 14. He said that he would typically drink with other African youth. [ZN} told me that initially they would drink on weekends in public places, pooling their resources to purchase alcohol. He said that he "enjoyed the feeling of being drunk" and described a pattern of regular binge drinking. [ZN} said that he would typically drink quickly with the goal of becoming drunk as rapidly as possible. He estimated that during a typical episode of drinking he could consume in excess of 30 standard drinks and often considerably more. He said that the frequency of such drinking bouts escalated throughout Year 11 of his studies and that it had increased in an especially dramatic manner after he discontinued school. He told me that in the period preceding his arrest he and his friends would typically drink most days and generally end only when they had exhausted their supply or lost consciousness.

12. Dr Farrand's report refers to an episode of alcohol-counselling which reportedly resulted in reductions to [ZN}'s alcohol intake. He did not discuss this treatment with me and specifically denied any periods of abstinence or significantly reduced drinking prior to his arrest and placement in custody.

13. [ZN} reported that he had engaged in sporadic cannabis use. He said that his use of this drug had been irregular and had been motivated by his enjoyment of the feelings of relaxation it brought. He was unable to be more precise about the amount of cannabis he consumed or the frequency with which he did so. "

If I could just interpolate into that, it is not a matter to which I have any regard in forming this sentence. Mr Newton further reported under the heading,

Emotional Distress

19. [ZN} goes to some lengths to portray himself as devoid of emotions. He keeps his emotions tightly controlled and is reluctant to discuss psychological issues. Detailed questioning indicated that beneath this exterior he is experiencing noteworthy distress. Chief among the causes of his distress is his current incarceration. [ZN} is under no illusions about the gravity of his situation and he is intensely pessimistic about his future prospects. He tends to brood on the hopelessness of his situation and feels that since his childhood his progress in life has been repeatedly derailed by forces beyond his control. In the current context, the fact that he cannot remember the offending to which he has pleaded weighs heavily upon his mind so that he is finding it extremely difficult to accept his current situation.

20. [ZN} described his predominate emotional state as one of irritability and resentment. He also reported a range of depressive symptoms including rumination on pessimistic themes, poor self-esteem, lethargy, and a loss of pleasure in almost all of the activities which remain open to him. Competing with these symptoms are equally powerful feelings of anxiety and agitation. A prominent part of these experiences takes the form of a profound sense of wariness about other inmates, irritability and resentment that have led [ZN} to become increasingly withdrawn and sullen. In turn, his social withdrawal has intensified his problems by cutting him off from participation in activities which would otherwise have the potential to improve his mood and promote his rehabilitation.

21. [ZN}'s emotional distress likely has several sources. At an acute level, one source is clearly his reaction to his current predicament. In addition, it is almost certain that unresolved issues associated with [ZN}'s disturbed childhood have left him vulnerable to psychological and behavioural problems. In his interview with me he did not report direct symptoms of Post-Traumatic Stress Disorder (PTSD). Nevertheless, his reports of pervasive memory difficulties relating to his childhood, his tendency towards dissociation, his continued experience of nightmares and his recourse to dysfunctional alcohol abuse are all strongly suggestive of a history of the disorder. Consistent with this and with the benefit of her more extensive contact with him, Dr Farrand was able to outline a series of residual traumatic symptoms which she had observed during her treatment of [ZN}

Alcohol Use

22. [ZN} described a pattern of severe addiction to alcohol. Not only has he engaged in regular consumption of extreme quantities since his mid teens, but he has also developed profound tolerance to its effects and has experienced prominent compulsion in relation to his drinking.

23. On [ZN}'s report, his use of alcohol had become central to his life. Alcohol use effectively derailed his participation in education and made it impossible for him to maintain any but sporadic employment. Moreover, he was unable to maintain relationships with those who did not drink and his broader recreational and other activities began to atrophy as he spent more and more time in alcohol-related activities. As a result, [ZN}'s progress towards establishing himself in a mature sense of personal identity was halted. The more alcohol came to dominate his life, the more his alienation from mainstream society deepened. In turn, the more alienated from society he became the more entrenched his involvement with other disaffected youth became and the more his drinking escalated out of control.

24. Based on the symptoms he reported to me, [ZN}'s alcohol use was sufficiently severe to warrant the diagnosis of 'Alcohol Dependence with Physiological Dependence'. His condition would be specified as 'Severe'. Given that he has been abstinent during his time in custody, this condition would now be specified as being 'In Remission, In a Controlled Environment'.

29 Mr Newton was also of the opinion that you had anger management issues which may be linked to periods of disassociation and it is important that you be given the opportunity to develop means of dealing with your anger. Mr Newton also regarded you as being vulnerable in the adult system.

30 You are still young. Your youth is an important consideration. It must, however, be balanced against the seriousness of your offending. There is however in your offending which has in relation to it some background of violence and animosity towards the deceased. Although your offending remains unexplained you have accepted your responsibility for it.

31 I have had regard to your psychological and psychiatric difficulties particularly those which come out of your background, in particular your symptoms of post traumatic stress disorder and your dissociative disorder. There is difficulty however in knowing what weight can be given to those matters because of their combination with your abuse of alcohol. Your drinking has been a major problem. I think it is borne to some degree out of the matters which are involved in your history and the place you see for yourself in society. There does however appear to be a sense of hopelessness for you and your group.

32 The fact that large groups of young men of African background spend a large portion of their lives drinking for no other reason than to get drunk reflects poorly on us. The parallels to what has happened and is happening among young African men and what happens to young Aboriginal men is inescapable and something must be done about it.

33 The combination of youth, alcohol or drugs and violence are now seen frequently in our courts and it is a matter of grave concern. The message that King Street on every Friday and Saturday night sends to our community and our youthful community is one of excess not of moderation.

34 I recognise nonetheless I am obliged to have regard to just punishment and to both general and specific deterrence which play a part but which because of your youth and other deficits not as much as they perhaps ordinary would. I recognise that detention in an adult prison will be more onerous for you and because of your background detention generally will be more onerous for you.

35 This is a tragic case. One young man is dead. Your life and the life of your family has been dramatically affected.

36 You will be sentenced to be imprisoned for 14 years with a non parole period of 10 years. I recommend to the Adult Parole Board pursuant to s 471 of the Children's, Youth and Families Act 2005 that you be transferred to a Youth Justice Centre. The appropriate report supporting that recommendation has been received and forwarded to the Adult Parole Board.

37 Pursuant to s 6AAA of the Sentencing Act, I indicate that, had it not been for your plea of guilty, I would have sentenced you to be imprisoned for a period of 17 years with a non parole period of 14 years.

38 I declare that you have served 453 days by way of pre-sentence detention and I direct that the above indication as to sentence and the declaration as to pre-sentence detention be entered in the records of the Court.