Director of Public Prosecutions v Atsabaha

[2018] VCC 1382

IN THE COUNTY COURT OF VICTORIA Revised
(Not) Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-00042

DIRECTOR OF PUBLIC PROSECUTIONS

v

BERIHUM ATSABAHA

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	30 August 2018
CASE MAY BE CITED AS:	DPP v Atsabaha
MEDIUM NEUTRAL CITATION:	[2018] VCC 1382

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms J. Fallar
For the Accused	Mr G. Hughan

HER HONOUR: 

1Berihum Atsabaha, a jury has found you guilty of one charge of armed robbery and one charge of recklessly causing injury.  You have also pleaded guilty to a charge of theft of motor vehicle.  The facts underlying your offending are as follows.  On 24 May 2017 the victim, Mathew Kirschner, went to the Altona Golf Club to play pokies.  As it was his birthday he had a drink, and won about $1,000.  After the venue closed at about midnight, he decided to try his luck again and at 2 am on 25 May 2017, drove to the West End Hotel in McIntyre Road, Sunshine to play the pokies there.

2He left his 1997 Holden Commodore Calais at the car park.  He was reasonably drunk, went into the premises and you approached him after a few minutes, introducing yourself as Smoky.  You asked Mr Kirschner how he was and if he wanted to score some ice and showed him a bag.  Mr Kirschner said he was not interested but, he said to keep it civil, decided to buy both of you beers, giving one to you.  You went over to see a number of your friends in the smoking area then returned and persisted with the offer and Mr Kirschner decided to ask if you had heroin, hoping this would make you leave him alone.

3You said you did.  The two of you talked and at about 2.44 am left the hotel, going to the car park and you getting into the driver's seat of a sedan, Mr Kirschner sitting in the front passenger seat.  You drove for some minutes, then stopped at a house where you said you would, "get the gear", then went inside the house while Kirschner remained in the car.  Three to four minutes later you returned to the car without anything, at which stage Mr Kirschner told you that you had better not try to rob him.  You told him not to worry, then went back into the house for another five minutes, then returned and drove a couple of blocks, then stopped the car.

4Suddenly, the rear passenger door opened, someone got in and put something hard on Mr Kirschner's neck, which he thought was a knife.  He remained still, fearing injury from this person and you continued to drive for another 90 seconds, stopping on the side of the road.  Mr Kirschner then hit the unknown male's arm and got out of the car but could not run because of recent leg surgery.  Both you and the unknown male went after him.  He described the second male as being of African appearance, in his late 20s to 30s and about six feet tall.  Mr Kirschner said this man was holding the knife at waist height, pointing at you and demanding that he hand over his stuff.

5Mr Kirschner said he told the male to get fucked, but this man continued to walk towards him, pointing the knife whilst Mr Kirschner walked backwards.  Mr Kirschner said he saw you walking behind him.  He said the man continued to demand he hand over his stuff when suddenly you hit Mr Kirschner's legs, causing him to fall and land on his back, while the other man stood over him and tried to stab his stomach.  Mr Kirschner said he grabbed the knife with his left hand to pull it away.  The man pulled the knife back, cutting Mr Kirschner’s palm in the process.  At this stage both you and the other man went through his pockets, stealing a Samsung mobile phone, a wallet containing his personal cards, $800 cash and his house and car keys.  Both you and the other man then ran back to the car and drove away. 

6Your actions in being part of the theft of Mr Kirschner's items whilst a knife was held on him and he was on the ground, underlie Charge 1, armed robbery.  Charge 2 relates to the injury Mr Kirschner received to his palm in the process of this armed robbery in which you are presented as an accomplice.  Mr Kirschner awoke a nearby resident and police were called.  Ultimately, Mr Kirschner was taken by ambulance to the Sunshine Hospital where it was discovered he had suffered a deep laceration to the palm of his hand, from the index finger to the middle crease and was referred for plastic, constructive surgery.  Police viewed CCTV footage and ultimately you were arrested on 2 June 2017. 

7In relation to the charge of theft of motor vehicle, Mr Kirschner discovered that his car, which had been left at the hotel car park on that night, was missing and reported it stolen.  Two days later, on 27 May 2017, police were patrolling an area at Williams Landing when at about 2.25 am they saw an unoccupied car near the railway station.  It was raining, the window was down and they heard a faint noise.  Police got out of the van and realised that the car's engine and radio were on and after checking the registration number, discovered it had been reported stolen and a tow truck was ordered, which took the car away.

8CCTV footage of the area showed that a few moments before the police discovered the abandoned car, you were seen walking alone from the location of it, towards stairs on the northern side of the railway station.  You at the time were wearing the same clothing as shown in the hotel's CCTV footage, on the night of the armed robbery.  You were discovered to be a possible contributor to a DNA sample taken from the steering wheel.  The prosecution case is not that you stole the car, but that the basis for the theft of motor vehicle was that you knew it was stolen and assumed a legal owner's rights over this property, with the intention of permanently depriving Mr Kirschner of the property, doing so dishonestly.

9You were arrested on 2 June 2017 when a car in which you were a passenger was intercepted by police who found there was a current whereabouts on you, regarding suspected armed robbery.  You were interviewed and made a no comment record of interview.  A filing hearing in this matter occurred on 7 June 2017, and on 5 July 2017 a bail application was refused.  There was a committal mention on 30 August 2017, then a committal on 19 December 2017 after which you were committed for trial.  A second bail application on 9 May 2018 resulted in a refusal.  On 2 July 2018, you pleaded guilty to theft of motor vehicle and between 3 and 6 July 2018, the trial was conducted.

10The maximum penalty for armed robbery is 25 years' imprisonment.  The maximum penalty for recklessly causing injury is five years' imprisonment.  The maximum penalty for theft of motor vehicle is ten years' imprisonment.

11I now turn to your personal circumstances.  You are now 26 years' of age, born to Ethiopian parents who were then living in Sudan.  You are the youngest of five children.  When you were aged nine, your father died of injuries he received in a truck accident and your mother died when you were 11.  At this time she was taking in lodgers and was seeking acceptance for herself and her family as refugees, because of the war situation then raging where you lived.  Following your mother's death, you worked, ceased going to school and helped around the house.

12In that time, unbeknownst to anyone else you were sexually abused by two older boys.  You told no one.  You were told fairly abruptly by your older sister that the family was moving to Australia.  On arrival here, you attended Braybrook and St Albans Secondary Schools to Year 9, but were expelled after being found with cannabis at a school camp.  You then attended TAFE college for about six months until you were 16, but then left school permanently.  You worked for three months for a fruit and vegetable market, then travelled to Adelaide with your then girlfriend, where you stayed for 12 months before being called back to Melbourne by your siblings.

13By this stage, you had begun regular drug use and from the age of 18 were a daily ice user, which I accept was still the situation at the time you committed the offences before this court.  In late 2014, early 2015 you were diagnosed by Orygen Youth Health as suffering a drug-induced psychosis.  You decided at that time to commit suicide by pouring petrol over your body, but did not light the match.  You also contemplated jumping off a bridge.  At this stage you received psychiatric treatment at St Vincent's and Footscray Hospital psychiatric wards.  Throughout this time you continued to use ice, GHB and occasionally cocaine.  You have apparently both injected and smoked ice.

14You are the only member of your family to be in trouble with the law.  Your oldest brother is a qualified roof tiler and plumber and you have worked with him on a number of occasions.  You have two sisters who have children and both work as cleaners at the Alfred Hospital.  Another brother works at a garden statue factory.  He attended the plea hearing as a representative of your family, who continue to support you.

15You have a number of prior convictions, beginning with two summary matters in South Australia and then receiving a Community Corrections Order in 2014 on charges of burglary and theft, committing an indictable offence whilst on bail.  The offending goes on in a fairly steady manner.  You received a second Community Corrections Order in 2015, with drug treatment and mental health conditions on charges of theft, obtaining property by deception, theft of a motor vehicle, criminal damage, driving offences, intentionally causing damage to property and so on.  I was instructed by your counsel, that most of your dishonesty offending was committed in support of your continuing drug habit.

16Indeed in April 2016, you were convicted and discharged for possessing methyl amphetamine and in June 2016 you were sentenced to 12 months' imprisonment on charges of handling stolen goods, driving offences, aggravated burglary, obtaining property by deception, obtaining financial advantage by deception and further driving offences.  On your release from custody, you attempted to begin an education course but were unable to afford the fees. 

17It appears that your family, even though they have remained supportive, have had difficulties in handling your behaviour.  After being expelled from school you were told to leave home and you then couch surfed with friends.  You have continued to live half and half, as I understand it, in that way since then,  sometimes residing with family members, sometimes residing with friends.  You have unfortunately continued to use drugs and you have remained in custody since your arrest.  Whilst in custody you have worked as a billet, which is a position of trust, which you held until recently when you were placed in management following a fight between two other inmates, in which it was obviously believed that you were in some way involved.

18You told psychologist Jeffrey Cummins, whose report dated 22 April 2018 was tendered on the plea, that after your release from custody you kept working as a labourer with your brother for about three months, but then drifted back into drug use and then also began gambling on the pokies, and eventually you returned to a full blown ice habit.  It is clear you have had a very difficult time and you have told Mr Cummins that you believe you need therapeutic and psychological treatment for your past sexual abuse, which you have only revealed recently and the trauma of your early years.

19I should add that whilst in custody you have completed a number of courses, including an anger management course, a cleaning course, drug and alcohol course, English courses and an occupational health and safety course.  Mr Cummins believed that you have developed a Borderline Personality Disorder and are at risk of developing an Anti-Social Personality Disorder.  He believed there was a real probability you were suffering from post-traumatic stress disorder, and diagnosed you as suffering an Adjustment Disorder with Mixed Disturbance of Emotions and Conduct.

20He believed you had suffered complex trauma, involving the death of your parents, sexual abuse and your abrupt transport to Australia.  He described you as presenting as moderately depressed and moderately anxious.  It was Mr Cummins' view that the longer you remained in custody, where he believed it was unlikely you would receive the mental health treatment you require, the more you would repress the traumatic events and memories of your life, making it then more difficult to deal with those constructively.  He believed that despite the support of your family, your long-term prospects of rehabilitation were guarded.

21To add to your woes, as a permanent resident only, under s.501(3)A of the Immigration Act, your visa will eventually be cancelled as a result of this offending.  You can apply for revocation of the cancelling of your visa, but due to the character test requirements, are unlikely to be successful.  You are therefore likely to face deportation on the completion of your sentence.  The burden this will place on you in prison, whilst serving a term of imprisonment together with the serious punishing consequences of your offending, are matters which this court may take into regard as mitigating factors when sentencing you (see Guden v R (2010) 28 VR 288 at paragraph 27).

22Whilst in gaol you have been visited by Rebecca Halliday, a dual diagnosis senior practitioner with a Jesuit Social Services Connexions program, which assists marginalised young people aged between 18 and 26, who suffer both mental health and substance abuse problems.  In her reference dated 31 July 2018, Ms Halliday wrote of you in a positive way, including what she said was your good insight into the impact of your substance abuse and demonstrations of remorse for your offending, expressing a strong desire to make positive changes in your life and make your family proud.  I also received several urinalysis certificates of testing in July 2018 in custody which showed a negative result for drugs. 

23It is clear that unfortunately your offending has had a grave effect upon Mr Kirschner.  He writes that his life has been completely changed, describing himself as previously a happy, sociable and outgoing person who now rarely goes out, except to family or friends he has known "all my life as they are the only people I trust".  He said, "I stay at home mostly, and am extremely hyper vigilant about my safety on the odd occasion I do go out".  He said he's constantly looking over his shoulder, has been diagnosed with post-traumatic stress disorder and is on medication for depression, anxiety and panic attacks.

24Your offending was clearly planned and deliberate and committed with other persons.  It has not been submitted that I should deal with you in any way other than a term of imprisonment to be immediately served.  Unfortunately given your prior criminal history and the seriousness of this offending, I can only agree with that submission.  In my view, the principle of general deterrence, that is sentencing which sends out a message to other persons in the community as to what they can expect from the courts should they offend in the same way, is an important sentencing principle in this case.  It is my view that specific deterrence, that is a term of imprisonment which is a lesson to you about your own offending, is also important in this sentencing exercise.

25May I make the comment that I find it very concerning that a man such as you, Mr Atsabaha, who has clearly had a very difficult life, who clearly has a number of psychological problems which probably needed attending to a long time ago, has to be dealt with in this way.  I am particularly concerned that the results of this sentence that I impose upon you may result in your deportation.  I make these comments quite deliberately.  It is my view that the trauma of your life makes it unsurprising in some ways that you ended up in the situation you have now. 

26Your older brothers and older sisters clearly coped with the move to Australia.  They have gone on to lead productive and full lives here.  You were only 11 when you came to this country.  It seems you have always struggled.  It seems to me and for what it is worth, a most cruel outcome that as a result of this offending, you should face a prospect of being returned to a country where you have no close family and where you have not lived since you were 11 years' of age.  It is hoped this can be avoided and for what it is worth, it certainly is the view of this court that that is an extremely serious consequence to offending which perhaps could have been avoided, had there been some resolution to your difficulties when you were younger. 

27It is very hard for older brothers and sisters to do this; they were acting as your parents, but I note that your oldest brother would have been in his early 20s when you came here.  So you were effectively without parenting from the time you made this very difficult transition.  You were suffering the after effects of sexual abuse, which you told no one about and the pattern of your life thereafter is one that is entirely familiar to this court, with persons born in this country, Australian citizens who have suffered the sort of trauma that you have. 

28It is so often the case in this court that people who present before it, committing offences in support of an entrenched drug habit often have a history of tragic psychological conditions which have come about because of dysfunction and abuse in their own lives.  There is nothing particularly remarkable about your transition to drug use and offending in support of it, and I certainly hope that the comments that I have made may be of some assistance if there are any future, as there are likely to be, actions taken in regard to your remaining in this country.  Can you stand up please.

29Taking both the mitigatory and the aggravating matters I have mentioned into account, I therefore sentence you as follows.

30On the charge of armed robbery, you are sentenced to four years' imprisonment.

31On the charge of recklessly causing injury, you are sentenced to 12 months' imprisonment.

32On the charge of theft of motor vehicle, you are sentenced to 12 months' imprisonment.

33I order that the base sentence be the sentence imposed on Charge 1.

34I order that six months of each of the sentences imposed on Charge 2, and the charge of armed robbery be served cumulatively, giving a total effective sentence of five years. 

35I order that you serve a minimum term of two years and six months, before becoming eligible for parole.

36What is the pre-sentence detention?

37MR HUGHAN:  It is 454 as of, not including today, Your Honour.

38HER HONOUR:  I declare that 455 days of this sentence have already been served by way of pre-sentence detention.  Pursuant to s.6AAA, I declare that had you not pleaded guilty - sorry. 

39MR HUGHAN:  Just - just in relation ‑ ‑ ‑

40HER HONOUR:  In relation to the theft of motor vehicle, I declare that had you not pleaded guilty I would have sentenced you to a term of 16 months' imprisonment.  Now, Mr Atsabaha, are you still in management?

41ACCUSED:  Yes.

42HER HONOUR:  Very well.

43ACCUSED:  I will get out of management next week, Thursday on the 6th.

44HER HONOUR:  Very well.  All right, well look, just put your head down, all right.

45ACCUSED:  Yes.

46HER HONOUR:  You sounded like you were doing well in gaol before, and just keep your head down so that when you apply for parole, there is a possibility for it.  All right.  And I will make sure my sentencing remarks and the psychological material I have received, are sent to the Parole Board.  All right?

47ACCUSED:  Yes, all right.  Thank you.

48MS FALLAR:  Your Honour, I'm on my feet.

49HER HONOUR:  Yes, the licence.

50MS FALLAR:  Yes, licence.

51HER HONOUR:  Yes.  I am obliged to - and I am only going to do it in respect of the theft of motor vehicle, your licence is disqualified and any licences you hold are disqualified - cancelled and you are disqualified from - is there a minimum?

52MS FALLAR:  There is no minimum. 

53HER HONOUR:  Very well.

54MS FALLAR:  But if Your Honour does not specify, then it is three months.

55HER HONOUR:  Pardon?

56MS FALLAR:  If Your Honour does not specify a period, it is three months.

57HER HONOUR:  Yes.  And you are disqualified from obtaining any further licence for a period of six months.

58MS FALLAR:  Thank you, Your Honour.

59HER HONOUR:  All right.

60MS FALLAR:  That's effective today.

61HER HONOUR:  That's effective today.

62MS FALLAR:  I think Your Honour said PSD's 455, it should be 454.

63HER HONOUR:  No.  I am including today, Ms Fallar.  Thank you very much.

64MS FALLAR:  You're including today?  Thank you.

65HER HONOUR:  Yes, I am, thank you.

66MS FALLAR:  Finally there is just a minor ‑ ‑ ‑

67HER HONOUR:  Have a seat, Mr Atsabaha.

68MS FALLAR:  ‑ ‑ ‑ correction in relation to the chronology.  The committal is not 19 December 2017.  My learned friend has corrected that.  It is 10 January 2018.

69HER HONOUR:  The committal was conducted on 10 January 2017.

70MS FALLAR:  And I understand Your Honour already ordered the disposal on 28 August, a few days ago.

71HER HONOUR:  Yes, all right. Thank you very much.

72MS FALLAR:  Thank you.

73HER HONOUR:  All right, Mr Atsabaha, I wish you well.

74ACCUSED:  Thank you.

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