Director of Public Prosecutions v Boru

[2024] VCC 997

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-23-00853

DIRECTOR OF PUBLIC PROSECUTIONS

v

OMAR BORU

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JUDGE:

JUDGE DAWES

WHERE HELD:

DATE OF TRIAL

Melbourne

13 May – 20 May 2024

DATE OF PLEA HEARING:

28 June 2024

DATE OF SENTENCE:

2 July 2024

CASE MAY BE CITED AS:

DPP v Boru

MEDIUM NEUTRAL CITATION:

[2024] VCC 997

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:   Intentionally cause serious injury; assault

Legislation Cited:  Sentencing Act 1991 (Vic)

Cases Cited:Bugmy v The Queen [2013] 249 CLR 571

Sentence:  5 years 6 months’ imprisonment

NPP 3 years 6 months

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APPEARANCES:	Counsel	Solicitors
For the DPP	Dr J. Harkess	Solicitor for the Office of Public Prosecutions
For the Accused	Mr R. Thyssen	Mr T Danos

1Omar Boru, you pleaded not guilty in a County Court trial to the following charges on indictment No N1175166:

·        Charge 2 – intentionally cause serious injury in circumstances of gross violence;

·        Charge 3 – recklessly cause serious injury in circumstances of gross violence.

2These charges were given as alternatives, as they related to the one incident. If the jury unanimously reached a verdict of not guilty to the abovementioned charges, they were also required to consider two statutory alternatives being intentionally cause serious injury and recklessly cause serious injury.  At the time of your arraignment, you indicated that you were guilty of recklessly cause serious injury. Your guilty plea was not accepted by the prosecution as they contended that more serious charges were made out.

3On 13 May 2024, a jury was empanelled and your trial commenced.

4On 20 May 2024, you were acquitted of Charges 2 and 3.  You were found guilty of intentionally cause serious injury.  The maximum penalty for this offence is 20 years’ imprisonment.

5Indictment No N1175166 also contained charge 1, common assault.  When you were arraigned on 13 May 2024, you entered a plea of not guilty to that charge.  On 17 May 2024, after the evidence in the trial had concluded, you were rearraigned before the jury and entered a plea of guilty to that charge.  The maximum penalty for this offence is five years' imprisonment.

6The incident that was the subject of the jury trial occurred in August 2022. At the time, you were 26 years of age. I will now summarise the facts of the case in accordance with the evidence given in front of the jury.

7On 14 August 2022 at approximately 6.11 pm, you attended a bar in Brunswick Street, Fitzroy, called Labour in Vain. You had previously been barred from there, due to your former behaviour.  You gave evidence in the trial that you had consumed alcohol and smoked 'weed' throughout the day.  When you sat down at a table outside the bar, you said that you did not recall that you had been previously banned as you were 'pretty intoxicated'.

8Ms Vanessa Leopoldseder was the venue manager at Labour in Vain.  She had known you for approximately five years, by the name of 'Lamar'.  It was brought to her attention that you were in the vicinity and she went out to the front of the bar to speak with you.  You were sitting at a table with other patrons and drinking from a can of Jack Daniels, which you had brought with you. Ms Leopoldseder went up to you and said 'Lamar, you know you're not welcome here, off you go'.  You frowned at her and she repeated that you were not welcome.  You told her to 'fuck off'.  She told you again that it was time 'to get up and go as you’re not welcome here'.  At this point, you got up from your chair, placed your hands on her shoulders and violently shoved her. She fell backwards into the bench behind the table where you were sitting and hit her back.  She was shocked as you pushed her quite forcibly and she suffered slight bruising.  She got up and went inside the bar, to get away from you. 

9Ms Leopoldseder told a barman that you had pushed her over.  Mr Colin (Bruno) Deans was sitting at the bar at the same time.  Mr Deans was a regular patron of Labour in Vain and was friends with Ms Leopoldseder and the other staff.  He had been there since late afternoon that day.

10Ms Leopoldseder went behind the bar and called Triple 0.  While she was waiting to get through to the operator, Mr Deans went outside and confronted you.  Ms Leopoldseder followed him while she remained on the phone. Mr Deans told you that you had to leave.  You did not know who he was.  You puffed out your chest, stuck out your chin, and said 'who are you?'  Mr Deans asked you to leave again and told you that you were not welcome, while doing a 'shooing motion' with his arms.  His voice started at a conversational level, but as things progressed, he began to use more harsh language, telling you to 'fuck off'. You were agitated and refused to leave.  Mr Deans placed his hands on your chest and pushed you backwards.  In response, you threw the can of Jack Daniels at Mr Deans.  It 'glanced' off his face and its content sprayed over the window of the bar.

11Mr Deans started to pace towards you, telling you to 'fuck off' and that you needed to leave.  You retreated backwards and said nothing at first.  The pair of you moved in a northerly direction along Brunswick Street.  On several occasions, Mr Deans stopped to return to the pub and, as he moved in that direction, you would come forward as if you, too, were returning.  Mr Deans would then turn and advance on you again and you would again retreat.  This went on for between five to ten minutes.  Eventually you walked away.  Mr Deans went back inside the bar to clean himself up from the can that was thrown at him and he continued to socialise. Ms Leopoldseder then went to the Fitzroy police station, raising her concerns about what had occurred.

12After you left the bar, you returned to your apartment which was located at 239 Brunswick Street.  Your friend and housemate, Mr Elphas Kamuren, had been at the bar with you and had returned home a short time earlier.  In your evidence, you said you returned to your apartment and stayed there for around an hour and a half.  Before heading out again with Mr Kamuren, you admitted that you armed yourself with a large silver kitchen knife that was approximately 20 centimetres in length and 4 centimetres in width.  You were wearing two pairs of pants at the time and placed the weapon inside the pocket of the tracksuit pants that you wore underneath your outer pants, to conceal it.

13You gave evidence that you do not know why you grabbed the knife as you were leaving, that you had no reason to carry the knife at all, and that you had no excuse for taking it. You said you were going to see a family friend who you called your uncle, who resided in an apartment located further south on Brunswick Street. You denied that you took the knife to hurt Mr Deans.

14At around 8.00 pm, Mr Deans was standing at one of the tables at the front of Labour in Vain with another patron.  Mr Kamuren approached them and began to converse with them in a friendly manner.  After a few minutes, you appeared beside Mr Kamuren.  Mr Deans immediately recognised you.  He was indignant about your return and said 'what are you doing back here?  You threw a can at me. Fuck off'.  He started to advance on you and the events of the previous encounter were replayed.  Ms Leopoldseder was inside the pub and saw what was occurring.  She called Triple 0 and went outside.  You were in the company of Mr Kamuren.  Mr Deans was in the company of two other men.  After a short while, a fight broke out.  You and Mr Deans were pushing and yelling at each other while his friends attempted to resolve the situation.

15An independent witness who is a doctor, was in the vicinity and observed the altercation.  He could hear shouting and swearing and, after a brief period, saw there was pushing and shoving. He then saw that you reached inside the pocket of your pants, pulled out the knife and stabbed Mr Deans to the left side of his face.  The knife lodged into his left cheekbone area and became stuck.  Mr Deans fell to the ground, at which point CCTV footage shows that you attempted to kick him. The doctor noticed that you stabbed Mr Deans in the face within a second of taking out the knife.  He observed one stabbing motion and then saw you lift the hood of your jumper over your head, as you and your friend ran away. 

16The victim stated that you struck him three times and that he did not see the knife. He admitted that he was affected by alcohol at the time and agreed that both this and his shock affected his recollection.

17The doctor began to administer first aid to Mr Deans while paramedics were called.  The knife remained lodged in his cheekbone, with the handle protruding from his left cheek and the wound was seeping blood.  Mr Deans also had a separate four centimetre wound to his left jawline. 

18Paramedics arrived and Mr Deans was transported by ambulance to the Royal Melbourne Hospital for emergency treatment. Upon his admission to hospital, he remained conscious and alert.  He was observed to have a facial palsy resulting in a degree of facial droop.  An X‑ray showed that the knife had significantly penetrated his face.  A CT scan revealed that the knife was extremely close to his vertebral arteries, brain stem and spinal cord.  There were associated facial bone fractures and he also sustained facial and jaw muscle nerve injuries. Although his vital signs were normal at the start, Mr Deans soon became hypertensive and his heart rate dropped.  He was given a blood transfusion and his vital signs returned to normal.  While awaiting surgery he was provided with a tetanus shot, intravenous pain relief, antibiotics and antinausea medication.

19Fortunately, the knife was successfully removed by a team of surgeons and the wounds were stitched.  In a subsequent operation, Mr Deans' severed facial nerves were repaired with microscopic neurosurgery.  He was discharged from hospital after five days and provided with oral antibiotics and outpatient care.  Ultimately, the only long-term physical injury recorded was scarring. In his victim impact statement, Mr Deans states that he also suffers from mild facial droop which affects his smile.

20Dr Angela Williams, a senior forensic physician with the Victorian Institute of Forensic Medicine, gave evidence that Mr Deans sustained a penetrating sharp force trauma to his face and skull resulting in a deep incised wound to the left side of his face, two severed nerve branches and possibly a small arterial bleed.  He underwent emergency surgery to repair the structures. She observed that it cannot be determined whether there were two separate physical strikes or an initial glance and then a second penetration where the knife had stopped.

21In Dr Williams’ opinion, it was not out of the question that Mr Deans could have died as a result of your attack.  When the knife was in situ, its tip had butted the brain stem and some blood vessels.  Had he not received medical care, the injuries could have been fatal.  There was also a risk in removing the knife, as well as a risk associated with the penetrating injury or if an infection set in.  Ongoing bleeding could also be uncontrollable and fatal.  Surgical intervention was required to remove the knife, without which there was a risk of Mr Deans’ death.

22After the incident occurred you and Mr Kamuren parted ways.  You went to your uncle’s apartment.  In the lift, you met some other residents and can be seen on CCTV footage re-enacting the stabbing while holding a towel around your right hand. You suffered a wound to your right thumb, as well as small wounds to the tips of your middle and ring fingers which are likely to have been derived from your hand slipping down the blade of the knife, when you lodged it into Mr Deans’ head. You walked into the apartment where you took off your outer layer of clothing, which was stained with blood.  You left the clothes there and set off shortly after you arrived.  Your uncle told you to go to hospital and you kept your hand wrapped. He left with you and you soon met up with Mr Kamuren.  

23At 8.55 pm, police members attended your residential area in Brunswick Street.  As they arrived, they observed you and Mr Kamuren walking towards your address.  They called out and you ran away, going south along Brunswick Street before turning into a side street.  Police pursued you on foot.  An officer eventually located you under a van a few blocks away.  You were splayed out on your stomach and came out, repeating the words 'I fucked up, I fucked up'. You were arrested and handcuffed by police. Your right hand was wrapped in a cloth and appeared to be covered in blood.  Police requested an ambulance and you were transported to St Vincent’s Hospital. When you arrived at the hospital you underwent blood alcohol tests which showed your readings of 0.172 and 0.175.  An examination revealed a deep wound to your right thumb where your flexor tendon was exposed.  The next morning, you received treatment and underwent surgery. Your wound was closed with dissolvable stitches.

24Both you and Mr Deans provided a reference sample of DNA to assist police.  Forensic analysis revealed both of your DNA was on the knife that was inside Mr Deans’ left cheek bone.  After your release from hospital, you were spoken to by police and made a 'no comment' record of interview.  You were remanded into custody.

25In this trial there was no dispute that Mr Deans suffered a serious injury, nor was it in dispute that you caused his serious injury.  The two areas that were contested were whether you had intentionally caused serious injury, and secondly, whether the prosecution had established circumstances of gross violence, namely, whether you planned in advance to have with you and use the knife to exact revenge on Mr Deans.  After considering all the evidence, the jury found that the offences that were alleged to have occurred in circumstances of gross violence were not made out and verdicts of not guilty were entered in relation to those two charges.  You were found guilty of intentionally causing serious injury and I am required to sentence you on the basis of the jury verdict for that charge.

26A succinct victim impact statement was provided by Mr Deans. He describes that your conduct was a traumatic experience that has impacted aspects of his life. He has two visible facial scars; his face still feels droopy at times and he has a lopsided smile.  He undergoes short spells of melancholy where he dwells on the impact of your attack and how close he came to 'lying dead in the gutter'. He needs to manage his mental health, which sometimes affects his capacity to attend work. He no longer feels relaxed when out walking at night and fears your revenge. There is no dispute that your violent conduct has had a significant impact on him. I take the contents of the victim impact statement into account.

27The range of potential injuries that fall within the gravity of the serious injury category is extensive.  I accept that while there was no dispute that the injury suffered by the victim was serious, it is not at the upper end of range of these offences.  However, in all the circumstances this is still a serious example of this offence.  To have been stabbed in the face by you, with a sharp knife that you had concealed, was a violent attack where the victim’s life was endangered.  When considering the objective gravity of your offending, I take your conduct and its consequences into account. Overall, it falls within the mid-range.

28When you were first arrested you did not admit your participation in the offending. You were remanded into custody. On 7 November 2022, you offered to plead guilty to recklessly cause serious injury, which was not accepted by the prosecution. A contested committal proceeded and you pleaded not guilty to the charges.  You were released on bail on 24 May 2023 with conditions including reporting to police, a residential condition, a curfew and not to consume alcohol. You participated in the Court Integrated Services Program (CISP) for several months. I am told that although you did not strictly comply with your bail conditions, you remained in the community until the jury delivered their verdict.

29The case eventually ran as a trial. You had continued to indicate that you would plead guilty to recklessly cause serious injury, which you did when arraigned in front of the jury.  In those circumstances, I conclude that you have shown a qualified acceptance of responsibility for your offending and have also shown some incomplete remorse.  Your admission of your offending conduct resulted in far more limited matters to be in dispute in this trial and I take that into account in your favour.  Given your admission of involvement, I accept that it reduced the length and the level of complexity of the trial.  This facilitated the administration of justice and your trial ran more efficiently as a consequence. You are entitled to a benefit for that, although you were ultimately convicted of a more serious charge.

30Your guilty plea to common assault was entered at a very late stage, after you had given evidence in the trial. You admitted in cross examination that although you did not recall it, the CCTV footage shows that you did push Ms Leopoldseder. You are entitled to a modest benefit for your guilty plea to Charge 1 as the jury was not required to consider this offence and so a utilitarian benefit remains.

31

You have admitted your criminal history, where you have been dealt with in the Magistrates Court on five occasions since 2015 for offences including intentionally cause injury, affray, unlawful assault and robbery. In 2018, you received an

18 month CCO that included therapeutic conditions, which you completed. You were also released in 2021 on an undertaking to be of good behaviour with conditions to manage your alcohol dependence, which was breached the following year. Clearly, you did not derive a significant benefit from these court orders. In your evidence in the course of the trial, you admitted that at the time of this offending you had consumed a large quantity of alcohol and cannabis.  You have not been sentenced to imprisonment in the past and the current incident demonstrates an escalation in the seriousness of your offending. You were on bail at the time, which is an aggravating factor.

32I turn now to your personal circumstances. You were born on 1 January 1996 in Ethiopia and are now 28 years of age. You are not currently in a relationship and have no children. You are the youngest in a sibship of seven. Your mother underwent severe persecution when pregnant with you. After your birth, your family was ‘on the run’ in Ethiopia for four years before arriving in refugee camps in Kenya.  You parents separated while there and you came to Australia with your mother and siblings when you were nine years old. You had no relationship with your father, who is now deceased. You are now an Australian citizen.

33You spent a couple of years in Darwin and then relocated to Melbourne. You are estranged from most of your family, which you attribute to your history of alcohol dependence. Fortunately, you have maintained a relationship with an older brother and have contact with him while incarcerated.

34You experienced significant difficulty with the immigration process which was exacerbated by your inability to speak English and cultural differences. You had minimal education in Kenya but attended primary and secondary school in Melbourne. You enjoyed playing football which made you more popular at school and your English language improved through club support. You were expelled part way through Year 12, due to an alcohol related incident. You commenced study at TAFE which you did not complete. You have done voluntary work with youths in Carlton and casual work as a labourer. At the time of your remand, you resided in private rental accommodation and had casual employment in warehousing.

35From an early age, you have sought to self-medicate with alcohol and cannabis. You first used cannabis at the age of 13, habitually taking around 3 grams per day, as it would help you to sleep. You have also experimented with other illicit drugs, including MDMA, GHB and methylamphetamine as well as unprescribed medication, including Xanax. You started to drink alcohol at the age of 17 years and would consume large quantities, so that you would pass out.

36You were in a previous relationship for four years which ended as a result of your alcohol use. You acknowledge that you are an alcoholic and this has had a negative impact on your relationships and your employment, as well as led to the commission of the offences in this case and your previous offending.  You are now in enforced remission while in custody and recognise that you need drug and alcohol treatment, as well as psychological help.

37You have spent a total of 326 days on remand for this matter. You are currently at the Fulham Correctional Centre and attend the gym and play sport daily. You previously worked in Horticulture at the MRC and have applied again for work. You have participated in an Alcoholics’ Anonymous course while on remand.

38At the request of your solicitor, you recently participated in an assessment with forensic psychologist, Mr David Ball.  In a most helpful report to the Court, dated 21 June 2024, he provided your personal history, including your drug and alcohol use. He made the following observations and findings:

·        

You present as a socially detached individual with a fragile ego. You

self-medicate with alcohol and substance abuse and are assessed as an alcoholic. You have a severe alcohol and cannabis use disorder, in early remission.

·        You are likely to engage in self-destructive and impulsive behaviour, such as excessive alcohol and drug use.

·        You lack empathy and are largely mistrustful and suspicious of others. When things go your way, you may be gracious, cheerful and friendly. When crossed or faced with embarrassment, you are likely to respond impulsively and become angry.

·        Your background was significantly deprived. You suffered during your formative years in Ethiopia and then in refugee camps in Kenya. Your mental health presentations stem from transgenerational trauma. Your life experiences have exacerbated this trauma, leading to poor psychological and social functioning.

·        You have an untreated Post Traumatic Stress Disorder (PTSD), emanating from your chaotic and violent surroundings before you migrated to Australia.

·        You experience symptoms of depression and 'massive' anxiety that result from your earlier life circumstances. You have a persistent depressive disorder with anxious distress.

·        You do not have evidence of psychotic symptoms.

·        You have shown some insight into your psychological functioning and you are trying to understand your offending behaviour.

·        You present with challenges in terms of safe management in the community. Proposed treatment that would assist you has been outlined at the end of the report.

39Your counsel has submitted that your childhood and upbringing were characterised by hardship, violence, instability and deprivation. As a result, you developed an issue with self-medication through the use of cannabis and alcohol during your teenage years. There is no dispute from the prosecution that you have faced significantly difficult experiences as a younger person.  You have undergone a traumatic upbringing, over an extended period.

40The prosecution agrees with your counsel’s submission that the principles of Bugmy v The Queen[1] are enlivened in your case, and that this is a mitigating factor. In Mr Ball’s opinion, your formative years were significantly deprived as your life experiences were chaotic and violent before you arrived in Australia. Your PTSD emanates from your childhood experiences.  I accept that your childhood reflects a background of significant disadvantage, which has not diminished and the principles of Bugmy are enlivened in your case. This is a mitigating factor on your plea. I also accept that there is a link between your personal history and your use of drug and alcohol abuse to self-medicate. Mr Ball assessed your alcohol and cannabis use disorder to be severe. The principles of Bugmy are applicable to the overall sentencing process here. I accept that your moral culpability is reduced. The principles of deterrence, denunciation and just punishment should also be moderated, although they are still relevant and should not be eliminated entirely. This is counterbalanced, however, by the principle of community protection which remains a relevant sentencing consideration.

[1][2013] 249 CLR 571.

41Your prospects of rehabilitation are linked to your capacity to avoid relapse into alcoholism and to deal with your issues upon your release. Mr Ball opines that you present with challenges of safe management in the community related to your untreated PTSD and self-medicating with alcohol.  I consider that your prospects remain only fair, given Mr Ball’s opinion, your criminal history, and overall circumstances.

42When considering sentence in this matter, I am aware that Intentionally Cause Serious Injury is a category 2 offence pursuant to the Sentencing Act1991.[2] It is conceded that a term of imprisonment is the only appropriate disposition for your offending, although it is submitted that a longer period on parole should be imposed given your circumstances as it would encourage your rehabilitation and assist with community protection, which remains relevant. The prosecution agrees that a term of imprisonment is required, being a head sentence and a non-parole period.

[2]Section 5(2H)(e) of the Sentencing Act 1991 (Vic).

43I take into account the maximum penalty for these offences and current sentencing practices. I have considered the cases to which I was referred by the prosecution. Balancing all of the factors as best I can, I sentence you as follows:

Charge	Sentence	Cumulation
Intentionally Cause Serious Injury	5 years 5 months’ imprisonment	BASE
Common assault	3 months’ imprisonment	One month
Total Effective Sentence	5 years 6 months’ imprisonment
NPP	3 years
PSD	326 days
S6AAA	Common assault: 4 months’ imprisonment

44I will make the forfeiture order.  There is no objection to that.

45Mr Thyssen, do you want to have a quick word to your client here, or will you go and see him downstairs?

46MR THYSSEN:  I will go and see him downstairs, Your Honour.

47HER HONOUR:  All right.  Thank you both very much and your instructor, Dr Harkness, for the running of the trial.  I will excuse Mr Boru. You are free to go, sir, thank you.

48If either of you would like a copy of the sentence, I am going to be on leave so it will not be checked for about three weeks. If you want the draft, please just let my associate know and we will send it through.

49MR THYSSEN:  May it please Your Honour.

50HER HONOUR:  Thank you.

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