The Queen v Majok [2017] VSC 72

11 Mr Majok came to know of Mr Deng through his sister, Suzie Majok. In January 2015, Ms Majok was living at 1 Cowra Avenue, which intersects with Furlong Road, in St Albans. Ms Majok first met Mr Deng on or about 2 January 2015. A friend of hers had passed her telephone number to some other people. Ms Majok was contacted by a girl called Muzungu, who ultimately arrived at her place, from Adelaide, with Mr Deng and three others. The group stayed with Ms Majok at her home. Apparently, the arrangement was that the group were going to stay with Ms Majok only long enough to fix their vehicle. Mr Deng and Ms Majok formed a sexual relationship during that time.

12 It is also apparent that the relationship between Ms Majok and her guests was at times volatile. A police event chronology tendered on the plea records that, on 6 January 2015, police attended Ms Majok's home in relation to a complaint that five males were refusing to leave the house. The chronology also records that: the complainant had been pushed to the ground and was bleeding from her nose; one of the males in the house had a knife; and that males had been staying at the house for two weeks and had attacked the complainant when she tried to get them to leave. It is unnecessary to make any finding as to whether these events actually occurred. I do accept, however, that, in the lead-up to his assault on Mr Deng, Mr Majok had been told by his sister that things of this nature were occurring.

13 By Friday 9 January 2015, Ms Majok wanted the guests to leave. She called her brother to complain to him that there were people in her house that she did not want there. She also told him that she had been assaulted. Mr Majok told her to ring the police or to "kick them out".

14 On the evening of Saturday 10 January 2015, all of the group except Mr Deng were at a function away from Ms Majok's premises. Mr Deng and Ms Majok remained at the flat and had been drinking alcohol together since approximately 10:00 a.m. that morning. Mr Deng was also affected by cannabis.

15 At some point, an argument erupted between the pair. According to Ms Majok, Mr Deng was asking her for sex and she refused. Mr Deng grabbed her arm and pushed her onto her bed. She kicked him and was yelling at him.

16 Mr Majok then arrived at his sister's home. He told Mr Deng that he wanted everyone out of the house. He found the group's bags and put them outside. He then left a short time later.

17 When Mr Majok returned, Mr Deng was still there. He said he expected him to be gone by the time he returned from the airport, to which he was about to travel. Mr Deng agreed he would leave. Mr Majok then left for the airport.

18 Mr Deng and Ms Majok continued to argue. They were hitting each other and fighting for about 20 minutes. Ms Majok rang her brother again.

19 At about 11:15 p.m., Mr Majok returned to the flat with two friends, James Murrary and Ding Majak. They went inside. Mr Deng was still there. He was obviously intoxicated.

20 Ms Majok told Mr Deng to leave. He walked outside, followed by Ms Majok. She tried to fight and kick him as he left, until she was stopped by Mr Majak. Mr Murrary and Mr Majok approached Mr Deng, who, by this stage, was on Furlong Road. Mr Majok was heard to be arguing with Mr Deng at that time.

21 Mr Deng then walked backwards along Furlong Road, which was busy with traffic. Mr Murrary grabbed hold of Mr Deng to move him off the road, twice. Mr Deng responded aggressively. Mr Murrary then returned to Ms Majok's home.

22 Mr Majok and Mr Deng then started to cross Furlong Road. The traffic was still heavy. While on the road, Mr Majok punched Mr Deng with a closed fist to the side of the head. (There is some evidence that Mr Majok punched him a second time. But, since it is unclear, I am compelled to sentence on the basis that there was one punch only.) In any event, immediately after the punch, Mr Deng dropped and fell onto the road. Mr Majok moved towards the footpath, leaving Mr Deng on the road.

23 A neighbour yelled from her window to Mr Majok to pick him up. Mr Majok turned around. I am prepared to accept that he was, at that point, going back to help Mr Deng.

24 Sadly, however, almost immediately after he was punched and as Mr Majok was turning back to help him, Mr Deng was struck by a red Toyota Yaris driven by Daniel Ha. Mr Ha felt a bump, as if going over a speed hump, but did not realize he had run over a person, so he kept driving.

25 Mr Majok ran after the Toyota. He was then picked up in another car driven by one of his friends. They pursued Mr Ha and eventually waved him down about three kilometres away. They told him that he had hit Mr Deng.

26 Mr Majok telephoned police and an ambulance. Paramedics examined Mr Deng at the scene. He was in a state of cardiac arrest. He was transferred to Sunshine Hospital where he was pronounced dead shortly thereafter.

27 Mr Majok was spoken to by police at the scene and then arrested. He was taken to Sunshine Police Station and interviewed, but exercised his right to silence.

28 An autopsy was performed on Mr Deng's body by forensic pathologist Dr Matthew Lynch. Mr Deng was found to have multiple injuries, including abrasions to his head, torso and limbs, as well as a ruptured spleen and significant chest injuries, including bilateral rib fractures with a left flail segment and fractures to the sternum and thoracic spine.

29 A toxicological analysis detected ethanol (alcohol) in Mr Deng's blood at a level of 0.23 grams per 100 millilitres. Cannabis was also detected.

30 Dr Lynch concluded that the injuries to Mr Deng's chest were consistent with his being run over by a car. It was also possible that the impact with the vehicle caused some of the injuries to Mr Deng's head and neck. While the abrasions to Mr Deng's head and face may have been caused by being punched by Mr Majok, they could also have been caused either by the impact of the vehicle or related to trauma associated with the impact of hitting the ground. Dr Lynch concluded that the cause of death was most appropriately formulated as injuries sustained in a motor vehicle collision.

31 Before turning to other matters relevant to sentence, I shall set out the procedural history of the case in some more detail.

32 Initially, Mr Majok was charged with recklessly causing serious injury.

33 He was remanded in custody, where he remained for five days, until granted bail.

34 About ten weeks later, he was charged with manslaughter.

35 In June 2015, he was committed for trial on that charge.

36 Then, in February 2016, a trial was commenced before this Court, twice. On each occasion, the jury was discharged after a few days of evidence. The matter was then listed for a trial before a third jury commencing in October 2016.

37 In September 2016, however, following plea negotiations, the Director filed a new indictment charging reckless conduct endangering life, to which Mr Majok pleaded guilty.

38 The plea hearing was commenced on 16 December 2016 and then adjourned for a further hearing on 1 February this year, to allow for a report to be prepared on Mr Majok's suitability for a CCO.

39 Before turning to an assessment of the seriousness of the offence and the matters in mitigation, I shall set out in more detail Mr Majok's background as outlined by Mr Dann on the plea.

40 Mr Majok was born in South Sudan on 26 November of 1994.

41 He now lives with his mother and his step-father in Melbourne. His natural father separated from his mother when Mr Majok was around two years old. His father died in 2015 following injuries sustained in conflicts in Sudan. He was taken to Egypt for surgery, but, unfortunately, this was unsuccessful. Mr Majok's mother and step-father have been together since Mr Majok was approximately three of four years old.

42 After the separation of his parents, Mr Majok was raised by his mother. They had a fairly nomadic existence, moving back and forth between Egypt and Sudan. He commenced schooling in Egypt. However, when he was about six, the family moved back to Sudan where he completed Grades 1 and 2. He and his mother then returned to Egypt and he completed Grades 3 to 5.

43 The family then moved to Australia. Mr Majok's aunt lived in Australia and she was able to sponsor him, his mother and his sister. Eventually, his step-father was able to join them here in Australia. Mr Majok also has two half-brothers.

44 The family first settled in Wyndham Vale and lived with Mr Majok's aunt. Mr Majok attended language school for three months in Braybrook. He then attended St Peter's Primary School in Sunshine West where he completed Grade 5.

45 The family's living arrangements were difficult. At one stage, they were living in Sunshine and their house was vandalised. Objects were thrown through the windows, which were broken. The family had to move into emergency housing in St Albans. There was then a period of transitional housing in Keilor Downs for three-and-a-half years. In 2013, the family were granted public housing in Deer Park, where they continue to reside today.

46 Throughout those years and the various living arrangements, Mr Majok continued his education through various schools. After completing Grade 5 at St Peter's, he then went to Sacred Heart in St Albans and completed Grade 6. He then attended St Albans Catholic Regional College, where he completed Years 7 through to 10. He then completed Years 11 and 12 at Sydenham Catholic College.

47 While Mr Majok did pass Year 12, his reports indicated that there were certain limitations in terms of his intellectual functioning. Mr Dann did not suggest that Mr Majok had a disability, but, rather, that the reports did show some learning difficulties.

48 Upon completing Year 12, Mr Majok commenced studies at Swinburne University in 2014. He started a three-year business course, but abandoned it after one year, shortly after Mr Deng's death.

49 I turn now to the various factors I have weighed in coming to the view that a CCO should be imposed.

50 First, reckless conduct endangering life can be a serious offence. It carries a maximum penalty of ten years' imprisonment.[3]

51 This offence had some serious features. For example, punching a drunken man hard enough to cause him to fall onto the road and then to leave him there, albeit briefly, when the road is busy, at night-time, seems to me to be a very dangerous thing to do. While the fact that Mr Deng was struck by a car and killed is not a matter to be taken into account in sentencing, it does nevertheless illustrate just how dangerous such behaviour can be. Further, by his plea of guilty, Mr Majok accepts that he foresaw that an appreciable risk of death was a probable consequence of his conduct. Finally, Mr Majok must have known that Mr Deng was heavily affected by alcohol and, in consequence, less likely to have his wits about him or be as able to take a blow or avoid any danger created in consequence.

52 Further, as the victim impact statements reveal, the impact of this crime on Mr Deng's family is grave. At the same time, I must be careful not to allow the family's grief over their loved one's death to affect the sentence, as he is not to be sentenced for an offence involving causation of Mr Deng's death.

53 On the other hand, other factors offset the seriousness of the offence to a greater or lesser degree. First, I accept that Mr Majok must have believed that Mr Deng had behaved inappropriately and violently towards his sister and still was being aggressive after he was ejected. It is plain that his sister was in an hysterical state. As a result, I think it is likely that Mr Majok's emotions were running high too, which is likely to have clouded his judgment. Secondly, only a matter of seconds after the punch, Mr Majok turned back to assist Mr Deng, albeit too late as things turned out. Thirdly, he chased down the driver of the car and rang for police and an ambulance.

54 Overall, and in so far as labels matter, I would assess this offence as falling between the lower and middle range of seriousness for offences of this type. More serious examples of the offence are sometimes seen when people fire guns at or near others or drive cars in a very dangerous fashion and thereby endanger passengers or other road users. Further, I think that, while Mr Majok's moral culpability and degree of responsibility are both significant (given that he must have realized there was a high level of danger in leaving Mr Deng on a busy road at night), those matters are offset somewhat by the brief time before he sought to turn back, his emotional state and his behaviour in calling emergency services.

55 Secondly, Mr Majok's plea of guilty is a significant mitigating consideration. While the plea of guilty was not offered until a late stage, it was entered as soon as the Director accepted the plea offer. The plea of guilty was also made in circumstances where the history of the matter was such that a further trial would have been difficult for all concerned.

56 Thirdly, I am satisfied that Mr Majok is genuinely sorry for, and understands the impact of, his actions. So much is apparent from his plea of guilty and his remarks to professionals (viz, Mr Bell and Ms Cidoni).

57 The fourth factor concerns Mr Majok's youth. As I have said, Mr Majok was 20 at the time of this offence and he is still only 22 now.

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

59 Fifthly, while Mr Majok has a prior appearance in the Children's Court relating to two separate offences involving violence, these are matters which should be characterized as comparatively minor street offending committed when he was very young - at 14 and 17 respectively. He was released without conviction on an accountable undertaking to be of good behaviour on both matters.

60 Sixthly, more concerning, however, is that, from 28 September 2015, having received an 18-month CCO on various charges - including affray, resisting police and using threatening words in a public place in 2013, driving offences from 2014, and another affray committed in September 2015 - Mr Majok performed poorly on that order. It appears that Mr Majok's relationship with the officer supervising the order was strained.

61 Seventhly, however, I received a report, and heard viva voce evidence, from Gene Bell, a Youth Justice officer. I found that evidence very helpful.

62 Mr Bell, and subsequently one of his colleagues, supervised Mr Majok in the six or so months following his arrest on the present matter. That supervision ceased before Mr Majok's subsequent offence of affray in September 2015.

63 During that period, Mr Bell met with Mr Majok at least once a week and sometimes more frequently. He described Mr Majok's presentation over that six-month period as displaying "concerning features of deteriorating mental health". He said that Mr Majok reported experiencing "difficulty coping from day to day"; had begun to "isolate himself socially and was afraid to leave his home"; experienced "disturbed sleep" and was unable "to fall asleep until the early hours of the morning"; had a "reduced appetite - at times not eating for several days"; and experienced "intrusive thoughts during the day in relation to [Mr Deng] and dreams [that Mr Deng] was still ... alive". The report also noted that Mr Majok reported "hearing audible voices calling his name outside of his bungalow during the night".

64 Mr Bell also found that Mr Majok has "a tendency to under-report [his] symptoms ... and avoids taking steps to seek assistance in the hope that the symptoms will naturally improve on their own".

65 Mr Bell detailed that, on a number of occasions, Mr Majok had reported being physically assaulted in the community as a result of the charges against him. Mr Majok refused to report these incidents to the police or inform his family, as he did not want any further dealings with the persons responsible for assaulting him.

66 Mr Bell assisted Mr Majok in developing self-care strategies to reduce the risks of potential self-harm and the use of strategies to reduce his exposure to high-risk situations. Mr Bell found that he responded well to this work. He found him to be easy to work with.

67 He also observed that Mr Majok was somewhat immature for his age.

68 Mr Bell concluded that Mr Majok's level of engagement with Youth Justice was positive and his attendance was satisfactory.

69 Further, Mr Majok did not present with any substance use or alcohol abuse issues during the period of his Youth Justice supervision.

70 As I have said, Mr Bell also gave viva voce evidence at the plea hearing. He was of the view that Mr Majok's mental health deteriorated quickly following his release on bail in January 2015. He observed that, while Mr Majok has "quite a high tolerance for stress", when he becomes overwhelmed, he tends to "bury his head" and hope that his depressive-type symptoms will eventually improve.

71 When asked whether Mr Majok could cope and comply with a CCO, Mr Bell said that, if matched with the right case manager that understands him, has the time to engage him around his mental health needs and is willing to get other services involved, then he could comply with a CCO.

72 Mr Bell also opined that Mr Majok would benefit from a judicial monitoring condition in a CCO because it would give him short time-frames in terms of having a goal to meet. In his experience, for a person such as Mr Majok, who is experiencing mental health issues, shorter time-frames are much easier to manage.

73 Mr Bell also recommended that, were I minded to impose a CCO, a necessary component of the order should be a condition that he receive mental health treatment. He said that Mr Majok is very easily engaged and, in his opinion, would be willing to talk to professionals.

74 I was impressed by and accept Mr Bell's evidence.

75 Eighthly, Mr Dann also tendered a report by consultant psychologist Gina Cidoni. Ms Cidoni interviewed Mr Majok for approximately three hours on 17 November 2016. In her report, Ms Cidoni says this:

David Majok presents as a young man functioning at a borderline level of intelligence. His full scale IQ was 77, presenting significant challenges in terms of thinking clearly and rationally, problem solving and considering the consequences of his actions. Subtests that did not rely upon language were in the below average range, still reduced, but probably more reflective of his level of functioning.

76 Ms Cidoni also noted that personality testing of Mr Majok indicated anxiety, paranoia, low mood and difficulty controlling anger. She noted symptoms of post-traumatic stress disorder surrounding the offending with intrusive recollections, arousal symptoms and impairment of academic function.

77 She also opined that Mr Majok presents as impressionable and vulnerable and that imprisonment would be a greater burden on him by reason of his "concerning mental health symptoms and low IQ".

78 Ms Cidoni recommended Mr Majok undertake counselling to address his anger management and his reduced problem solving skills.

79 Ninthly, I am satisfied that the delay in this matter has caused considerable strain on Mr Majok. For most of the last two years, he has been faced with a manslaughter charge, which must have been difficult.

80 Finally, I am satisfied that Mr Majok has reasonable to good prospects of rehabilitation. I do not say that those prospects are very good or excellent, but just reasonable to good. There are several reasons for that conclusion.

81 First, on the one hand, Mr Majok's prior and subsequent offending and his performance on the CCO - together with his unexplained failure to attend the initial current CCO assessment and his lateness for a second appointment - suggest poorer prospects.

82 Secondly, on the other hand, Mr Majok's plea of guilty, remorse and youth point towards better prospects.

83 Thirdly, despite what is said in Ms Cidoni's report, Mr Majok has shown he has the ability to participate in his university studies and contribute to the community. I am satisfied that he is capable of resuming his studies again in the near future.

84 Fourthly, Mr Majok is fortunate to have the support of his mother, step-father and siblings. That was confirmed by Mr Bell during his evidence on the plea hearing.

85 Fifthly, Mr Dann submitted - and I accept - that Mr Bell's evidence showed that, during the six months he provided supervision, Mr Majok had demonstrated a period of compliance, attendance and promising improvement.

86 Finally, Mr Majok has no history of illicit drug use or alcohol abuse.

88 I accept that general deterrence, denunciation and just punishment have a significant role to play in the current sentence.

89 I think specific deterrence is also of some significance, although of less than usual, given the mental anguish Mr Majok has endured over the last two years and his plea of guilty and remorse.

90 I do not consider that there is any need to add a separate component in sentencing for protection of the community. The sentence that results from the other purposes of sentencing will ensure that the sentence is of sufficient severity to protect the community. In any event, I hope and expect that community protection is something that will be achieved through rehabilitation.

91 I think it is important to recognize the interplay between rehabilitation and protection of the community in any event. It is in the community's interests that Mr Majok's prospects of rehabilitation be maximized, so that his risk of reoffending is as low as it reasonably can be and his chances of making something of himself are maximized. I think that there is more chance that that will be achieved through a CCO than an immediate gaol sentence in this particular case.

92 Section 5(3) of the Sentencing Act provides that "[a] court must not impose a sentence that is more severe than that which is necessary to achieve the purpose or purposes for which the sentence is imposed". Section 5(4) provides that "[a] court must not impose a sentence that involves the confinement of the offender unless it considers that the purpose or purposes for which the sentence is imposed cannot be achieved by a sentence that does not involve the confinement of the offender". Section 5(4C) provides that "[a] court must not impose a sentence that involves the confinement of the offender unless it considers that the purpose or purposes for which the sentence is imposed cannot be achieved by a [CCO] to which one or more of the conditions referred to in sections 48F, 48G, 48H, 48I and 48J are attached". These provisions reflect the common law principle of parsimony. In my view, the sentence I am about to pass is neither more nor less severe than is necessary to achieve the sentencing purposes I have just discussed.

93 This is a unique case. Neither counsel nor I could find any other similar cases to consider by way of comparison. The matters dealt with in this Court and in the Court of Appeal in recent years relating to charges of reckless conduct endangering life have typically related to offending involving the use of firearms or motor vehicles.

95 Weighing up all considerations, I think the community would be better served by giving Mr Majok a further chance on a CCO. It seems to me that he is at a critical stage of his life. An immediate gaol sentence at this particular time, I fear, might do no more than corrupt him and set him on an even clearer trajectory towards criminal offending. On the other hand, I think that a CCO will give him a better chance of ultimate reform.

96 I also accept the recommendations that there be conditions requiring mental health treatment and judicial monitoring.

97 Further, I think it appropriate to impose an element of punishment in requiring that he do unpaid community work as part of the CCO.

98 Accordingly, having received a pre-sentence report and providing Mr Majok consents to the order, pursuant to s 37 of the Sentencing Act, the Court will sentence him, on the offence of reckless conduct endangering life, to be released on a community correction order, with conviction, for a period of 18 months.

99 Pursuant to s 45, the order will contain the following standard conditions. In particular, Mr Majok:

1. must not commit, whether in or outside Victoria, during the period of the order, an offence punishable by imprisonment;

1. must comply with any obligation or requirement prescribed by the regulations;

1. must report to, and receive visits from, the Secretary during the period of the order;

1. must report to the community corrections centre specified in the order within two clear working days after the order coming into force;

1. must notify the Secretary of any change of address or employment within two clear working days after the change;

1. must not leave Victoria except with the permission, either generally or in relation to a particular case, of the Secretary;

1. must comply with any direction given by the Secretary that is necessary for the Secretary to give to ensure that he complies with the order.

100 Pursuant to ss 47, 48C, 48D, 48K and 48L, the following additional conditions will be attached to the order. In particular, Mr Majok:

a) must complete 100 hours of unpaid community work over a period of nine months;

b) must undergo mental health assessment and treatment and rehabilitation;

c) must submit to judicial monitoring; and, in particular, (i) Mr Majok is to appear before this Court on 22 May 2017 at 10:30 a.m. for review of compliance with the order and (ii), by 18 May 2017, the Secretary is to provide a written report, to the Director of Public Prosecutions, Mr Majok's solicitors and the Court, on Mr Majok's progress on the order.

Section 6AAA declaration

101 Pursuant to s 6AAA of the Sentencing Act, I declare that, but for his plea of guilty, I would have imposed on Mr Majok a sentence of nine months' imprisonment plus a CCO for 18 months, with the same conditions.

[1] Contrary to s 22 of the Crimes Act 1958 (Vic).

[2] See Part 3A of the Sentencing Act 1991 (Vic).

[3] See s 22 of the Crimes Act 1958 (Vic).