Director of Public Prosecutions v Abiel
[2021] VCC 1881
•19 November 2021
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 21-00002
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| NELSON ABIEL |
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JUDGE: | HER HONOUR JUDGE TODD |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 8 November 2021 |
DATE OF SENTENCE: | 19 November 2021 |
CASE MAY BE CITED AS: | DPP v Abiel |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1881 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Plea of Guilty- one charge recklessly cause serious injury in circumstances of gross violence- one charge make threat to kill – related summary offence possession of a schedule 4 poison – youth- circumstances of COVID-19 pandemic
Legislation Cited: Crimes Act 1958; Sentencing Act 1991
Cases Cited:Johns v The Queen [2020] VSCA 135; Winch v The Queen [2010] VSCA 141; Worboyes v The Queen [2021] VSCA 169
Sentence:Total effective sentence of 5 years and 6 months imprisonment with a non-parole period of 4 years and fine of $200
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms J. Malobabic | Office of Public Prosecutions |
For the Accused | Mr C. Pearson | James Dowsley & Associates |
HER HONOUR:
Introduction
Plea of guilty and maximum penalties
1Nelson Abiel, you have pleaded guilty to one charge of causing serious injury recklessly in circumstances of gross violence. The maximum penalty for this charge is 15 years’ imprisonment.
2You have also pleaded guilty to one charge of making a threat to kill which has a maximum penalty of 10 years' imprisonment and to a related summary offence of possessing a drug of dependence, which has a maximum penalty of 10 penalty units.
Circumstances of the offending
3The circumstances of your offending are set out in the Prosecution Opening for Plea dated 3 November 2021. That document was tendered on the plea and became Exhibit A. It is attached to and forms part of these reasons. I will not repeat it all here, but will summarise some of the facts giving rise to your offending.
4You met Taddis Gebrehiwot in late 2019; you were friends with his brother. At the time of your offending Mr Gebrehiwot was 41, and you 25.
5On 20 February 2020 you and Mr Gebrehiwot spent part of the day together in North Coburg. You went to the shops together. Mr Gebrehiwot was walking a dog that belonged to his neighbour.
6You bought some alcohol together and sat and drank it in Cox Reserve, a park near a block of units where Mr Gebrehiwot lived. While in Cox Reserve you became angry with Mr Gebrehiwot and pushed him to the ground. This was seen by a member of the public who became concerned enough to call triple zero, but by the time police arrived you and Mr Gebrehiwot had gone back to his unit at Peterson Avenue.
7Mr Gebrehiwot lived on the second floor of the three-storey units. A central stairwell gave access to the upper apartments. When you returned that day Mr Gebrehiwot stood at his door trying to get inside with the dog. You argued with him and pushed him around.
8You then grabbed Mr Gebrehiwot and carried him to the top of the stairs leading to the floor below. You then threw him down to the next landing -this was a distance of 3.9 metres in height or, measured diagonally from the top to the bottom of the stairs, five metres. It was the diagonal distance that Mr Gebrehiwot fell.
9After the fall Mr Gebrehiwot lay on the landing, unable to move. You approached him and demanded that he get up. You swore at him. Mr Gebrehiwot said, 'I can't get up. I'm paralysed. I can't feel my legs. I can't feel my hands.'
10You became angry. You then found the lid of a can on the ground nearby and started to cut Mr Gebrehiwot's neck with it. He was begging for his life. You stomped on his chest while trying to cut his throat with the lid.
11You said to him, 'I have to kill you.' Mr Gebrehiwot asked you why. You said to him, 'I can't leave you like this.' (This gives rise to Charge 2: making a threat to kil). Mr Gebrehiwot promised not to tell anyone and pleaded with you to leave him alone. When you started cutting his neck he was screaming, 'No. Please don't do that. Spare my life. Leave me alone. I have kids. I got family. I haven't seen my kids for a long time.'
12He then said to you,
‘If you are going to kill me, at least give me just one last cigarette. While I finish the cigarette, you go, get your food and your liquor, and when you come back you do it. I can't move. I'm paralysed.’
13You agreed and put a cigarette in his mouth before leaving.
14When you left Mr Gebrehiwot called for his neighbours to call police. Police arrived at 8PM. You were by then out the front of the units with groceries and the dog. You told police you did not live at the address and did not know of anyone calling for help.
15By this time a neighbour had tried to carry Mr Gebrehiwot to his apartment, but only got as far as the top of the flight of stairs and left him there.
16When police arrived they could hear Mr Gebrehiwot screaming in pain. You followed them and blocked the part of the staircase where he lay. You became aggressive and police had to ask you to move out of the way.
17When police finally found him, Mr Gebrehiwot was lying face down on the stairs with his legs pointing down. He had lost control of his bowels and bladder and was unable to move. He was coming in and out of consciousness. He told police that he had fallen down the stairs and that he could not feel his arms or legs.
18Police noted a superficial wound on Mr Gebrehiwot's neck; it was on the left side, two straight lines about six or seven centimetres long in the shape of a cross.
19You returned to where the police were. You told them you did not know Mr Gebrehiwot. They told you to leave again. Police became suspicious, though, when they found Mr Gebrehiwot's possessions at the bottom of the stairs. You claimed not to know either him or how you ended up with the dog.
20Mr Gebrehiwot was taken to hospital by ambulance. At this stage he was still saying he had fallen down the stairs. Police noticed that you had become emotional. They saw you walk towards the ambulance stretcher and whisper to him, 'I'm sorry.'
21The following day police spoke to Mr Gebrehiwot who said that he had been drinking with you, that you had thrown him down the stairs. He later gave a recorded evidence video from the rehabilitation centre where he was continuing his recovery.
22Mr Gebrehiwot suffered a range of serious injuries. Initially Mr Gebrehiwot reported experiencing numbness, tingling and loss of function in both arms and legs. There was a superficial wound in the shape of a cross on the left side of his neck. His upper left chest wall was tender.
23Mr Gebrehiwot was transferred from the Royal Melbourne Hospital to the ICU at the Austin Hospital for further management. His discharge summary notes that he suffered a 'C3/C4 discoligamentous spinal injury with cord compression and swelling.'
24Mr Gebrehiwot was an inpatient at the Royal Talbot Rehabilitation Centre for approximately three months from 5 March 2020. He now lives in a one-bedroom unit with 24-hour support care. A neurological physiotherapist assessed Mr Gebrehiwot and wrote a report dated 1 November 2021 and summarised Mr Gebrehiwot's range of impairments. I have taken that report into account insofar as it reflects the relevant injuries (as opposed to pre-existing conditions).
25Mr Gebrehiwot now needs 24-hour assistance with all aspects of his daily life. He uses a power wheelchair. He has poor posture control and is unable to sit in a normal chair. He needs help to manage his bowels. Because of the loss of sensation in his feet, he has injured them without noticing, and this makes him vulnerable to infection. He has a high risk of falls. It is recommended that he be supervised while outdoors. He needs help to get in and out of bed or to move from a chair or bed when he needs to use the bathroom. He is a high risk of skin-related injury from pressure. Pain affects his sleep. He can eat and drink independently, but he needs his food to be fully prepared and cut up for him and has to use an easy-use bottle to drink.
26Mr Gebrehiwot suffered an incomplete spinal cord injury at the level of cervical vertebrae C2. I note that some of the injuries referred to in the report as compounding the sequelae of the spinal injury are not attributed to the spinal injury and were, in essence, pre-existing. I refer in particular to the frontal lobe injury.
27Because of the nature of his injuries and the minimal progress in his recovery, Mr Gebrehiwot is assessed as having a permanent disability and significant physical impairments as a result of this injury that you inflicted. He will require ongoing complex care and needs support in all aspects of daily living as well as long-term clinical and medical support.
Arrest and interview
28You were arrested and participated in a record of interview on 17 March 2020. Initially you denied knowing Mr Gebrehiwot. Later, however, you said of Mr Gebrehiwot, ‘He’s sweet, he looks after me. He’s a good guy. We are good, we look after each other.’ You told police that Mr Gebrehiwot had slipped and fallen down. You exercised your right to silence in response to the direct allegation of committing an assault on Mr Gebrehiwot.
Prior criminal history
29Your criminal record commences in the Dandenong Children's Court in 2016. You also appeared in the adult Magistrates’ Court that same year. The following year you were convicted of recklessly causing injury, amongst other offences, in the Magistrates’ Court. You were again convicted of that charge in 2018. Your history is consistent with the proposition that your prior offending has invariably been committed while abusing alcohol.
30The combination of crimes in this history suggest disorderly, drunken and somewhat violent behaviour. There are assaults, but nothing approaching the order of the crime that you are now being sentenced for. Still, it is a deeply troubling history for one who is still youthful.
Nature and gravity of the offending: Culpability and Degree of Responsibility
31I must address the nature and gravity of your offending, your culpability, and your degree of responsibility. I am obliged to articulate where your offending fits into a range of similar offending.
32I was told your victim was someone you regarded as a mentor and a good man, a friend of your brother's. Someone, in other words, thoroughly undeserving of any kind of aggression. You were drunk and belligerent. If there was ever any reason for you to hurt him, it is forgotten now. Of course, there is no reason that could have justified your dealing with Mr Gebrehiwot in this way. The fact that this level of behaviour could be produced by something so unmemorable and therefore so unimportant is baffling and concerning.
33Your plea contains within it an acceptance that you were aware that your actions would probably result in Mr Gebrehiwot being seriously injured, but you nevertheless persisted.
34Determining the seriousness of a particular instance of this offence involves considering both the degree of probability that serious injury would result and the seriousness of the probable injury foreseen.[1] What transpired was a catastrophic life changing injury to Mr Gebrehiwot. It was submitted, and I accept, that although you foresaw the probability of serious injury, you did not, as a necessary part of that perception, foresee the level of serious and permanent injury that in fact occurred. As to the degree of probability that serious injury would result from the act of throwing a man down a flight of stairs over five metres, that degree must be counted as high.
[1]Winch v The Queen [2010] VSCA 141; (2010) 27 VR 658, 665 [36].
35Further, I do note that the charge is put on the basis of the circumstances of gross violence described in s15B(2)(e), that is, that you continued to cause injury, as opposed to serious injury, to Mr Gebrehiwot after he was incapacitated. The injury referred to is the superficial cuts you made to Mr Gebrehiwot's neck that I have already described. In these circumstances I find that the acts (the superficial cut to the neck) constituting the gross violence in your case, are of a slightly lower order than what might arise in other circumstances.
36However, I also bear in mind that you, while heavily intoxicated, threw another man down a flight of concrete stairs. He then in a state of injury, semi-paralysis and no doubt profound fear, lay on his back while you stomped on his chest, used a sharp object against his neck, and threatened to end his life. It is deeply shocking behaviour.
37It is not known over what period of time these events unfolded.
38I must also consider the charge of making a threat to kill in its full context. You threatened to kill a man who was, at the time, unable to move, unable to run away, and unable to fight back. It was made at a time when you were still in the process of injuring Mr Gebrehiwot by attempting to cut him to the neck. Happily, he was still able to speak and was able to persuade you to give him time, which you gave him and which he used to call for help. But I regard the threat to kill as a separate and serious version of offences of its type.
39I do not sentence you on the basis that it was you that caused Mr Gebrehiwot to be reticent about naming you in a complaint to police. Your barrister submitted that Mr Gebrehiwot never stated in terms that he did not want to tell anyone because he was afraid of you in particular, and I make it clear that you will not be sentenced on that basis.
40But, Mr Abiel, what you did was meaningless, cruel and sustained as an attack on someone who was supposed to be your friend. Your barrister described it as inexplicable. You were drunk at the time; this in no way reduces your responsibility.
41If I have not already been clear, I do accept that while the consequences for Mr Gebrehiwot are catastrophic, I do not regard your culpability to be elevated to the highest order by reference to those injuries.
Personal circumstances
42I will turn now to your personal circumstances.
43You are now 25 years old. You committed these offences when you were 23.
44You were born in what is now South Sudan and travelled to Australia via four years in Egypt- you arrived in Australia in 2004 when you were eight.
45Your parents are separated and you have 10 older brothers and sisters. You are close with your mother and your siblings, but you are not in contact with your father. You described your elder brothers as playing the role of your dad.
46You were raised in the Catholic faith. You had some education in Egypt. When you arrived in Australia you spoke no English, you are now a fluent speaker of English and your native Arabic.
47You were a reasonably good student at school, staying until Year 11, leaving when you were 17 years old, following an injury you sustained while playing sport.
48You were a good sportsman, showing particular talent in soccer, you played in academy and league soccer.
49After leaving school, you worked for a short period in retail, but this did not work out. You then tried to get work at a range of places, including McDonald's, but you were unable to get hired. You felt disappointed. You started using drugs regularly. You smoked cannabis from about 16; started drinking at 18; and between the ages of 22 and 23 drank spirits daily for about 18 months. You continued your daily cannabis use. You used methamphetamine intermittently.
50At this time period when you committed this offence, your drug and alcohol use was high and daily. You started couch surfing and became effectively itinerant. Your lifestyle had become dissolute.
Matters in Mitigation
Plea of guilty
51Turning now to matters in mitigation.
52You entered a plea of guilty to these charges, and by doing so you saved the community, but most particularly, the witnesses from the costs both human and financial of having a trial. This is a very significant matter and will be counted in your favour.
53Moreover, I must impose a sentence in the context of the pandemic where the benefit to you for pleading guilty must be palpable. The justice system is currently under enormous strain and you have taken one more trial out of a very long list. The benefit to the administration of justice that this bestows will be recognised and recognised in a substantial way.[2] I make it clear that were it not for these circumstances, which have severely affected the administration of justice in Victoria, your sentence would have been much higher.
[2]Worboyes v The Queen [2021] VSCA 169.
Psychological Material
54Turning now to the psychological material. On your plea your lawyer tendered a report authored by Dr Nicholas Owens. Although originally prepared in answer to a question about mental impairment, the report was still helpful. I have considered all of it and take it into account in a general way. In Dr Owens' opinion you meet the criteria for substance use disorder with regard to alcohol, cannabis and methamphetamine. Importantly, it seems that you have some insight into the negative effects that these addictions have on your life.
55In Dr Owens' opinion you were not, at the time of the offending, suffering from acute mental illness. Dr Owens finds that you were affected by alcohol and cannabis and that this disinhibited your behaviour. No particular legal submissions were advanced on the basis of these opinions, however I have taken the report of Dr Owens into account in a more general way, in relation to better understanding your personal circumstances.
Youth
56You are now 25 years old; you were 23 at the time of the offending. You are still youthful. Our community has a long-term stake in your rehabilitation. You have, perhaps, had less opportunity than someone older than you to develop a mature sense of the real harm that this behaviour can cause and has caused. I take this into account in arriving at your sentence.
Prospects of rehabilitation
57Your first language was Arabic when you came to Australia at eight. You are now fluent in English. You have done language and vocational courses in custody.
58Your mother remains supportive and you have regular contact with her by the phone.
59You clearly have a very serious problem with alcohol that will need to be meaningfully and rigorously addressed before you can genuinely rehabilitate.
60Helpfully, you have expressed some remorse for what you did. On the night police observed you say, 'I'm sorry' to Mr Gebrehiwot as he was being taken away in his injured state. In the record of interview you minimised somewhat and denied some things, but you ultimately agreed that it was you who committed this act and have pleaded guilty, which is an acknowledgement of your wrongdoing and contains an aspect of remorse.
61You are now serving what has been descried as ‘an imperfect atonement’ for what you did; you see yourself as paying off a debt through your imprisonment.
62I hold some concerns for your rehabilitative prospects, but if you can confront your alcohol use squarely, I think you could thrive. You have previously been a good student and a good sportsman.
Impact on your victim
63I have had regard to the impact of your offending on your victim. Although Mr Gebrehiwot elected not to write a victim impact statement, I have had regard to the profound and enduring harm caused to him that is evident in the medical reports before the court. I take Mr Gebrehiwot's dreadful suffering into account on this sentence.
Totality, Concurrency and Cumulation
64I have taken the principle of totality into account in arriving at your sentence and in arriving at the orders for cumulation and concurrency.
COVID-19 Pandemic
65As I deliver this sentence Victoria is emerging somewhat tentatively from many months of lockdown and restrictions. The anxieties and uncertainty of this time persists somewhat. Case numbers are high balanced only by the optimism of widespread vaccination. It is clear that for some time prisoners in Victoria, you among them, have suffered the anxiety of not knowing if or when this virus enters the prison system. Access to visits and programs have been significantly curtailed. For you, this has meant you have had Skype contact with your mother, but have had no personal visits in custody. There are fewer courses and less work opportunities available to you. So far you have served your sentence in that more severe and uncertain climate, and I take that into account. Adding to this burden of imprisonment has been what your barrister described as entrenched racism in the prison environment. I understand that these privations and uncertainties will persist during a significant remainder of your term of imprisonment.
Regard to current sentencing practices
66I have had regard to current sentencing practices. No particular case is much like yours, but I have had regard to the sentencing landscape. There are very few cases that assist me in locating your offending in the context of recklessly causing serious injury in circumstances of gross violence. In the course of the plea, I was referred to Johns v The Queen [2020] VSCA 135. It is a case quite unlike yours in many ways, in particular, that the accused pleaded not guilty. I have had regard to the general body of sentencing decided on the question of recklessly causing serious injury.
Application of sentencing principles
67Your barrister accepted that there is a role for specific deterrence, just punishment, and general deterrence in this sentence. I do see a role for specific deterrence in your case and for the protection of the community. You will be punished for what you did, and through me and through this sentence the community denounces what you did. It is outrageous behaviour committed against someone who was supposed to be your friend and for reasons that were so unimportant that they are now forgotten.
68I must also impose a sentence that hopefully deters other people from behaving in a similar way.
Mandatory minimum non-parole period
69There are some mandatory sentencing provisions that are engaged by your plea to the first charge of the indictment. Pursuant to s10(1) of the Sentencing Act 1991, causing serious injury recklessly in circumstances of gross violence, a court imposing a sentence that includes that charge must impose a minimum non-parole period of four years' imprisonment. The head sentence must be at least six months more than the non-parole period imposed pursuant to s13(3) of the Sentencing Act 1991. I note that no ‘special reason’ exception was argued in your case.
70In Johns v The Queen[3] the Court of Appeal clarified how this statutory requirement is to be applied. Specifically, I am not obliged to impose a mandatory minimum term of four years on the charge of recklessly causing serious injury in circumstances of gross violence; rather, and I quote:
‘Section 11(4) requires a single non-parole period to be fixed by reference to the aggregate period of imprisonment that the offender will be liable to serve under all the sentences then imposed.’[4]
[3] [2020] VSCA 135 at [93].
[4]Johns v The Queen [2020] VSCA 135 at [93]; see also Esmaili v R [2020] VSCA 63.
71Other than the minimum requirement for six months of parole, no mandatory relationship between the minimum non-parole period and the head sentence is imposed. The relationship between the head sentence and minimum non-parole period in this case may not appear to be ‘usual’ in some respects because of the other statutory structures and sentencing considerations that I am working within.
Category 1: Offence
72Further, Charge 1 on the indictment is a category 1 offence pursuant to s3(1) of the Sentencing Act 1991. It is of little moment in this case, given the mandatory minimum non-parole period.
Serious Offender Provisions
73The charges of causing injury recklessly in circumstances of gross violence and making a threat to kill are ‘serious violence’ offences for the purposes of Schedule 1 of the Sentencing Act 1991, therefore you are to be sentenced as a serious violent offender on Charge 2: threat to kill. The prosecution in this case did not call for a disproportionate sentence. I will indicate my orders for concurrency and cumulation in a moment.
Disposition
74On Charge 1: causing serious injury recklessly in circumstances of gross violence, you are convicted and sentenced to four years’ and six months' imprisonment.
75On Charge 2: making a threat to kill, you are convicted and sentenced to four years' imprisonment.
76On the related summary offence, Charge 3: possessing a drug of dependence, you are convicted and fined $200.
77I direct that one year of the sentence on Charge 2 be served cumulatively upon the sentence on Charge 1, resulting in a total effective sentence of five years’ and six months’.
78I direct that a minimum of four years’ is served before Mr Abiel becomes eligible for parole
79I cause to be entered into the record of the court that you are sentenced as a serious violent offender on Charge 2.
Pre-sentence detention
80Pursuant to s18 of the Sentencing Act 1991, I declare that you have served 612 days of pre-sentence detention to be reckoned as a period already served under this sentence.
s6AAA reduction
81Pursuant to s6AAA of the Sentencing Act 1991, I am obliged to state what sentence I would have imposed had you not pleaded guilty but been found guilty after trial. For the purposes of this section of the Act, I state that I would have imposed a period of six years’ and seven months' imprisonment with a non-parole period of five years’ and four months’.
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