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  • Unreported Judgment

R v Akol

 

[2020] QCA 50

[2020] QCA 50

COURT OF APPEAL

SOFRONOFF P

FRASER JA

CALLAGHAN J

CA No 3 of 2019

SC No 1761 of 2017

THE QUEEN

v

AKOL, Akol Deng  Applicant

BRISBANE

FRIDAY, 20 MARCH 2020

JUDGMENT

SOFRONOFF P:  The applicant pleaded guilty to causing grievous bodily harm with intent.  The offence arose in the following way.  There was a group of people who were drinking together, and at some point during that night the complainant invited the group to continue the party at his house.  The complainant told the applicant that he did not wish him to join them because he was too drunk, but the applicant nevertheless went.

There was a physical altercation between the applicant and another person.  The complainant then asked everybody to leave, but the applicant and several other people ignored that request.  The applicant then obtained a 30 centimetre long knife from the complainant’s kitchen and attacked the complainant.  He stabbed him six times, and the result of the stabbing was very serious for the complainant.  He was admitted to the intensive care unit of the hospital and spent six weeks in hospital.  He suffered severe internal injuries which were life-threatening.

The applicant is an immigrant to this country.  He lived in Yemen and Sudan before his family immigrated to Australia when he was about 11 or 12.  He did not at that point know how to speak English but went to school and gained some proficiency in the English language.

He has a previous criminal history in three states, namely, Tasmania, Victoria and Queensland.  It is unnecessary to deal with these in any detail.  It is sufficient to mention that in Victoria between 2011 and 2016 he had been convicted of offences involving violence, including intentionally causing injury, recklessly causing injury, attempted robbery and assault in company.  He was sentenced in Victoria to terms of imprisonment.  In 2016 he was placed on a community corrections order in Victoria, and while subject to that order he committed several offences in Queensland.

A psychological report was prepared and submitted and read by the learned sentencing Judge.  In substance, according to that report, it may be that the applicant has some kind of underlying condition that is related to his propensity for violence.  The most significant fact that emerges from the submissions that were made on his behalf and from the report itself is that he is a person who is, for reasons to do with his upbringing and his history, liable, when stressed and overwhelmed, to find comfort in alcohol.  When he does so, he engages in reckless and violent behaviour.  That is consistent with the circumstances of the offence with which he has been charged.

The applicant expressed remorse for his actions, and the learned sentencing Judge accepted that the applicant was truly remorseful, and his Honour took that into account.  At sentencing, the prosecution submitted that a sentence in the order of nine to 10 years imprisonment with a serious violent offence declaration would be appropriate.  Counsel for the applicant submitted that a sentence in the range of seven to 10 years would be appropriate and was unable to make any substantial submissions against the imposition of a serious violent offence declaration.

It was in those circumstances and after a consideration of relevant authorities that his Honour decided that the appropriate sentence to impose was one of nine years imprisonment with a serious violent offence declaration.  His Honour took into account three months of incarceration that was non-declarable under the statute and accordingly reduced the sentence from one of nine years to one of eight years and nine months imprisonment.  The sentence imposed in that way is not inconsistent with cases dealing with similar incidents, namely, R v Whittaker [2011] QCA 237, R v Nguyen [2006] QCA 542 and R v Eade [2005] QCA 148.

The applicant has not demonstrated, nor has the Court been able to find, any error of fact on the part of the learned sentencing Judge or any error in the application of principle.  In addition, it does not appear that the sentence in itself is so severe as to indicate that some kind of an error must have been committed in the process of reasoning towards a conclusion.

There is, however, one aspect which, while minor, is nevertheless important.  It is that his Honour was given an incorrect figure for the number of days that the applicant had spent in custody prior to sentence.  His Honour acted upon the basis that the applicant had spent 557 days in custody before being sentenced.  In fact, as we have been informed this morning, the applicant spent 571 days in custody before being sentenced.  To that extent, therefore, the application should be allowed and the sentence imposed below should be varied so that order number 3 reads:

“The 571 days spent in custody between 9 February 2017 and 3 September 2018 be declared as time served.”

Otherwise, I would dismiss the appeal.

FRASER JA:  I agree.

CALLAGHAN J:  I agree.

SOFRONOFF P:  The order of the Court is that the application for leave to appeal against sentence is allowed.  The appeal is allowed to the extent that order 3 is set aside and, in lieu thereof, order 3 should read:

“The 571 days spent in custody between 9 February 2017 and 3 September 2018 be declared as time served.”

Anything else, Ms Wooldridge?

MS WOOLDRIDGE:  No.  Thank you, your Honour.

SOFRONOFF P:  Mr Akol, we have dismissed your appeal except that we have made sure that the time that you have spent in custody is correct in the order.

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Editorial Notes

  • Published Case Name:

    R v Akol

  • Shortened Case Name:

    R v Akol

  • MNC:

    [2020] QCA 50

  • Court:

    QCA

  • Judge(s):

    Sofronoff P, Fraser JA, Callaghan J

  • Date:

    30 Mar 2020

Litigation History

No Litigation History

Appeal Status

No Status