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Supreme Court 18 September 2019

R v Akok

[2019] NSWSC 1235

Homicide
CRIMINAL LAW SENTENCE MURDER PLEA OF GUILTY INTENT TO KILL USE OF WEAPON

Citation: R v Akok [2019] NSWSC 1235
Court: Supreme Court of New South Wales
Date: 18 September 2019
Judge: Button J

Background

The offender, an 18-year-old man of Sudanese background, pleaded guilty to the murder of a young male acquaintance on the evening of 27 October 2015 in Mount Druitt, western Sydney. Both men had been socialising and drinking alcohol together before a verbal altercation escalated into a fatal attack. The offender used a broken bottle to inflict severe injuries to the deceased's head and neck, causing death.

The guilty plea was entered at an early stage in the Local Court, but sentencing proceedings were substantially delayed by protracted inquiries into the offender's mental fitness to plead. Those inquiries were ultimately resolved in favour of fitness, and the matter came before Button J for sentencing nearly four years after the offence.

The sentencing proceedings featured contested questions about the offender's intent, his mental state at the time of the offence, and the weight to be given to a range of subjective mitigating factors, including his age, background as a Sudanese refugee, and a subsequent diagnosis of treatment-resistant schizophrenia.

  • Whether the offender intended to kill the deceased at the time of the attack, or merely intended to inflict really serious physical injury (relevant to objective seriousness)
  • How to assess objective seriousness within the context of the standard non-parole period of 20 years for murder
  • The weight to be given to the offender's mental state at the time of the offence, including a prodromal (pre-onset) stage of schizophrenia
  • How to apply subjective mitigating factors, including the offender's youth, refugee background, early guilty plea, and subsequent diagnosis and treatment of a serious psychiatric condition
  • Whether the ratio between the non-parole period and the head sentence should depart from the standard one-third adjustment, given the offender's mental illness

Decision

Button J found, beyond reasonable doubt, that the offender intended to kill the deceased. Although the offender was grossly intoxicated and mentally compromised at the time, the nature of the violence, including the infliction of a long and deep slash to the neck, multiple severe blows, and the use of a sharp implement directed at the head and neck, compelled the conclusion that an intention to kill existed at least by the time that wound was inflicted. The judge assessed the objective seriousness of the offence as above the midrange for murder. The deceased was alone and defenceless, a weapon was used, and the violence was prolonged. No provocation beyond words was established.

On subjective factors, the judge found a strong mitigating case. The offender was 18 at the time of the offence. He was a Sudanese refugee who had experienced significant hardship before and after arriving in Australia. Critically, expert evidence established that he was in the prodromal stage of schizophrenia at the time of the murder, a condition that somewhat reduced his moral culpability (though not to the level of substantial impairment). He has since been diagnosed in custody with treatment-resistant schizophrenia. The early guilty plea attracted a substantial discount of approximately 25 percent.

Button J departed from the standard one-third proportion between the non-parole period and head sentence, imposing a non-parole period representing three-quarters of the head sentence rather than two-thirds. This departure reflected the seriousness of the offence and the nature of the ongoing psychiatric condition, which made the prospects for rehabilitation and safe reintegration less certain in the shorter term. The judge also noted that the offender remained subject to provisions allowing for continued detention beyond the head sentence if he were found to present a danger to the community at that point.

The judge received and expressly acknowledged a victim impact statement prepared by the deceased's step-brother on behalf of the family. The statement described devastating and permanent grief, particularly for the deceased's mother. Button J extended condolences to the family and expressed hope that the conclusion of proceedings would offer some measure of closure.

Orders Made

  • The offender was convicted of murder.
  • A non-parole period of 12 years was imposed, backdated to commence 28 October 2015.
  • A parole period of 4 years was imposed, to commence 28 October 2027 and expire 27 October 2031.
  • The head sentence is 16 years' imprisonment, with a non-parole period of 12 years, fully backdated.
  • The court stated that, absent the guilty plea, a head sentence of 21 years and 6 months would have been imposed.
  • The earliest date of eligibility for possible release to parole is 27 October 2027.

Key Takeaways

  • Intent to kill can be inferred from the nature and location of injuries even where the offender was grossly intoxicated and mentally compromised at the time, provided the totality of the circumstances compels that conclusion beyond reasonable doubt.
  • A prodromal (pre-diagnostic) stage of a serious mental illness such as schizophrenia can reduce moral culpability for sentencing purposes, even where it falls short of establishing the partial defence of substantial impairment.
  • An early guilty plea entered in the Local Court, even where sentencing is substantially delayed by fitness proceedings, retains significant mitigating weight and attracted a discount of approximately 25 percent in this case.
  • The standard non-parole period of 20 years for murder operates as a legislative guidepost, not a fixed starting point, and the sentencing court retains discretion to depart from the standard one-third parole proportion where the circumstances, including ongoing mental illness, warrant it.
  • Sudanese refugee background and the hardships associated with it were treated as relevant subjective mitigating circumstances, contributing to what the Supreme Court characterised as a strong overall subjective case.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW) (murder provisions, maximum penalty of life imprisonment, standard non-parole period of 20 years)

Cases:
- No specific cases were cited in the metadata or in the excerpted portions of the judgment provided.