Court Assesses Sentence Imposed Against Accused Charged with Robbery

R v Kur [2021] VSC 501 (17 August 2021)

Chol Kur, along with AM, robbed Nathanial and Maaka Hakiwai.  During the incident, Nathanial was seriously injured and Maaka was killed because Horton, who was with Chol Kur and AM, stabbed the victims. Chol Kur seeks a mitigation of his sentence on the basis of his plea of guilt, youth, and the delay of his case.  The Court, in determining whether or not to grant what Chol Kur seeks, examined the contents of a pre-sentence report provided at the request of the Court, and evidence given by the author of the report at a later hearing.

Facts:

In the morning of Saturday, 28 September 2019, Chol Kur and AM, along with Horton, were rear seat passengers in a Toyota RAV4 (‘RAV4’) vehicle being driven by a young female named NW and containing two other young females.  An agreement was reached between Chol Kur and AM about robbing Nathanial and Maaka or the Hakiwai brothers who were waiting at a bus stop.  While the brothers were being attacked by Chol Kur and AM, Horton stabbed the brothers and then Chol Kur, AM, and Horton left the brothers injured.  The registration number of the RAV4 quickly led investigators to the father of NW who was the owner of the vehicle.

NW was arrested on the evening of 28 September 2019 and provided Horton’s name to the police as the person responsible for the stabbings.  She refused to provide the names of any of the other occupants of the car.  Chol Kur, AM and Horton were all charged with common law murder, statutory murder, intentionally causing serious injury (‘ICSI’), intentionally causing serious injury in circumstances of gross violence, and armed robbery.  On 2 December 2020, orders were made separating the trials of you and AM from the trial of Horton and an order granting a judge alone trial was made in respect of the Chol Kur and AM.  Horton was found guilty of manslaughter and ICSI. On 19 April 2021, the prosecution accepted Chol Kur and AM's offer to plead guilty to robbery. 

Chol Kur has engaged in further education.  However, between April 2018 and April 2019, Chol Kur accrued a number of convictions for various charges arising from six court appearances.  In 2019, Chol Kur were ordered to be detained in a youth justice centre (‘YJC’) for serious offending including two charges of robbery, two of affray, intentionally causing injury, false imprisonment, and committing an indictable offences whilst on bail.  At the time of Chol Kur's robbery of Nathanial, Chol Kur was on youth parole in relation to some of that serious offending.

Issues:

I. Whether or not Chol Kur is entitled to mitigation.

II. Whether or not Chol Kur is entitled to an additional reduction in sentence for the subjective features of his plea of guilty, including remorse.

Applicable law:

Criminal Procedure Act 2009 s 5(2)(daa), (da) and (db) - requires the Court to take into account the impact of your offence on any victim of it, the personal circumstances of any victim of the offence, and any injury, loss or damage resulting directly from the offence.

Sentencing Act 1991 s 6AAA - provides that if  in sentencing an offender, a court imposes a less severe sentence than it would otherwise have imposed because the offender pleaded guilty to the offence; and the sentence imposed on the offender is or includes an order that the offender serve a term of imprisonment, the court must state the sentence and the non‑parole period, if any, that it would have imposed but for the plea of guilty.

Veen v The Queen [No 2] [1988] HCA 14; 1988 164 CLR 465 - the Court held that 'community protection through incapacitation of an offender can only operate within the confines of the principle of proportionality’.

Analysis:

It was submitted by the counsel for the crown as well as the CCO Brief Pre-sentence Assessment Outcome Report that there is no evidence beyond Chol Kur's bare plea of guilty of remorse or contrition for his offending.  In particular, it was submitted that his conduct after the robbery in which he fled to NSW did not reflect genuine contrition.  Chol Kur have been in custody continuously since 6 October 2019, a period of 681 days.  The delay in his case has had the effect that a youth justice centre disposition that would otherwise have been open and appropriate in his case is no longer available. 

He was 19 years old at the time of your offending.  However, the consideration of his youthfulness must be weighed against the seriousness of his crime, your relevant criminal history, and the repeated opportunities you have been given in the past to address his offending behaviour.  The pain and loss experienced by Nathanial as a direct result of the actions of Chol Kur and AM is indivisible from that flowing from the actions of Horton. 

Conclusion:

You are entitled to a reduction in sentence for the utilitarian benefit of your plea of guilty.  You are not entitled to a further reduction for the subjective features of your plea of guilty, including remorse.  For the robbery of Nathanial Hakiwai, you are sentenced to be imprisoned for a period of 323 days.  The period of 323 days up to and including yesterday, 16 August 2021, is declared as being a period already served under this sentence.  For your plea of guilty, the Court would have imposed a sentence of 16 months’ imprisonment with a non-parole period of 10 months.