Director of Public Prosecutions v Dubaku (a pseudonym)
[2018] VCC 579
•27 April 2018
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| EMEKA DUBAKU (A PSEUDONYM) |
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| JUDGE: | HIS HONOUR JUDGE HIGHAM |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 14 December 2017; 16 February 2018; 12 & 16 April 2018 |
| DATE OF SENTENCE: | 27 April 2018 |
| CASE MAY BE CITED AS: | DPP v Dubaku (a pseudonym) |
| MEDIUM NEUTRAL CITATION: | [2018] VCC 579 |
REASONS FOR SENTENCE
---Subject: CRIMINAL LAW
Catchwords: Sentence – plea of guilty – one charge of causing serious injury intentionally – two charges of persistent contravention of family violence intervention order – offending against wife – no prior convictions
Legislation Cited: Crimes Act 1958; Family Violence Protection Act 2008; Sentencing Act 1991
Cases Cited:
Sentence:Total effective sentence of six years and nine months’ imprisonment with a non-parole period of five years.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms J. Piggott | Office of Public Prosecutions |
| For the Accused | Ms A. Brennan | Victoria Legal Aid |
HIS HONOUR:
1Emeka Dubaku,[1] you have pleaded guilty to one charge of persistently contravening a family violence intervention order between 15 October 2016 and 19 October 2016, one charge of persistently contravening a family violence intervention order between 20 December 2016 and 8 January 2017, and one charge of intentionally causing serious injury on 19 October 2016. The victim of your offending is your wife, Joyce.[2] The maximum penalty for intentionally causing serious injury is 20 years' imprisonment. The maximum penalty for persistent contravention of a family violence intervention order is five years' imprisonment or a fine of up to 600 penalty units or both.
[1] ‘Emeka Dubaku’ is a pseudonym.
[2] ‘Joyce’ is a pseudonym.
2You also pleaded guilty to a summary charge of contravening a family violence intervention order on 17 January 2018. The maximum penalty for this offence is two years' imprisonment or a fine of up to 240 penalty units or both.
3The circumstances of your offending are as follows.
4On 13 October 2016, police issued you with a family violence safety notice after an incident occurred at your family home in Sunshine North where you were then living with your wife and your five children. The notice prohibited you from being at or within 200 metres of the family home and from contacting Joyce and your two youngest children. In response to this notice you left the family home for two days before returning on 15 October and remaining at the address in deliberate breach of the notice. On 17 October 2016 an interim family violence intervention order was issued at the Sunshine Magistrates' Court prohibiting you from being at or within 200 metres of the family home and from committing family violence against Joyce and your two youngest children, William[3] and Belinda.[4]
[3] ‘William’ is a pseudonym.
[4] ‘Belinda’ is a pseudonym.
5You were present at this hearing. Immediately after the hearing, Joyce, William and Belinda were collected by your eldest son, Victor,[5] in his vehicle. Victor then drove towards Sunshine Plaza where you were waiting to be picked up. You got into the vehicle and you told your wife that she had to cancel the intervention order because you did not want to go to court any more. Your wife was visibly upset and was too scared to tell you that you were not allowed by law to return to the matrimonial home. In direct breach of the court order you went back to your home and remained there until 19 October 2016. Your wife did not report your presence due to her fear of you. These facts identify the persistent contravention of Charge 1.
[5] ‘Victor’ is a pseudonym.
6On 19 October 2016, Joyce dropped William and Belinda, the two youngest children, at school in the morning. At around 1 pm, shortly after you had got up, you dropped Victor and Jacinta,[6] your eldest daughter, at the local gym and you then returned to the family home where Joyce was preparing food in the kitchen. You and Joyce were the only persons present in the house. You entered the house through the back door, you approached Joyce from behind and you put your hands around her neck, choking her. You yelled, "Joyce! Joyce! From now you're not going to talk on the phone anymore!"
Joyce was extremely fearful as she was alone with you in the house and she apologised to you, saying that she would not talk on the phone anymore. With your hands around her neck you lifted her to the point where her feet were raised off the ground and Joyce was unable to breathe. She resisted your attack and clawed at your hands around her neck as you carried her towards the bedroom that you then shared with her. Joyce soon lost consciousness. Medical evidence suggests that Joyce sustained further injuries after she lost consciousness. You left Joyce in the bedroom and you departed the house on foot.[6] ‘Jacinta’ is a pseudonym.
7At about 3.30 pm your youngest daughter, Belinda, who was then aged 11, returned home after having walked from school, her mother having failed to pick her up as was the usual practice. Belinda found her mother in the bedroom and found her in an unresponsive state with a swollen face and bleeding from the eyes. Belinda ran out of the house to get help and found her older siblings, Jacinta and Victor, returning from the gym. They re-entered the house and attempted to rouse your wife. She, however, remained unresponsive. Jacinta contacted emergency services and requested an ambulance. After waiting for one to arrive, they felt that it was taking too long, so the children placed the victim, your wife, in the family vehicle and drove her to Sunshine Hospital's emergency department. Your wife was later transferred to the Royal Melbourne Hospital where she spent the next four days in an induced coma to relieve the pressure upon her brain.
8Your wife told investigators that in the course of your marriage to her you had been extremely jealous and controlling. You had issues with her talking on the phone and would often spy on her in the shower and in the toilet to see if she was using her phone. You had apparently shown your wife a newspaper article about a man who killed his wife. During the course of a telephone call between yourself and your wife on 17 November 2016, which had been recorded, you admitted to being at the matrimonial home at the material time and to having an altercation with your wife but you denied any allegation of choking her.
9Dr Jason Schreiber in a report dated 6 April 2017 conducted a forensic review of your wife's medical notes. On the basis of that review he stated that Joyce was admitted to hospital with bruising and swelling of the soft tissues of the neck, bilateral scalp haematomas, facial bruising, burst capillaries in the eyes and a possible fracture of the thyroid cartilage. This last injury remained no more than a potential diagnosis.
10 Dr Schreiber's opinion was, “There is evidence of blunt constrictive and friction trauma to the head, face and neck. It is not possible to quantify the amount of force required to produce these injuries. However, in an otherwise healthy person of this age, moderate to significant force would be required to produce these injuries. Applying constrictive force to the neck resulting in congestion and unconsciousness is life-threatening. Loss of consciousness is a condition leaving a person helplessly exposed to any impact or influence in the environment and endangers life. Such a person requires help from someone else to carry out essential protective functions.” These facts underpin Charge 2, intentionally causing serious injury.
11That was not an end of your criminal conduct, for between 20 December 2016 and 8 January 2017 in continued breach of the same family violence intervention order, you sent SMS messages to your wife. The subject matter of those SMS messages ranged from expressions of constant love on your part for your wife, expressions of your jealousy of her, concerns about the children, concerns about money that you believed that your wife had sent to the Congo and, most significantly in my view, placing blame very firmly upon your victim for your actions and the predicament in which you now found yourself. These facts constitute the persistent contravention in Charge 3.
12You were arrested on 16 January 2017, interviewed by police and remanded into custody. Your first court appearance was on 18 January 2017 with a committal being listed for 24 August 2017. The day before the scheduled committal the matter resolved and pleas of guilty were indicated. The matter originally came before me on 14 December 2017 but was adjourned and eventually concluded on 16 April 2018. I proceed on the basis that your plea of guilty was entered at an early opportunity and I give you full credit for that.
13In a victim impact statement dated 13 October 2017 (Exhibit 3), your wife described how, "I cannot forget what happened. I have these memories every day. I now have to see a psychologist to help me with this. My family has been separated. I now only have my two youngest children living with me as we had to move into government housing and my older children could not come". In that victim impact statement, your wife further details how she feels isolated in the community, lacking friends and how shame has been brought on to her family for what has happened. She described how she has been feeling ashamed and scared because of what happened. She writes, "I cannot talk to my old friends. I don't know if they will understand and support me".
14No shame whatsoever attaches to your wife, Mr Dubaku. She is and has been a victim of your violence towards her.
15She made a further victim impact statement that she swore on 23 April 2018, and in that statement she wrote as to how she forgives you and she describes your journeys together in the civil war back in the Democratic Republic of the Congo, your life in the refugee camp and how throughout all of that adversity, you were able to remain together. She does not want your children to live without you for a long time and so asks for leniency.
16Your family has been split apart as a direct consequence of your actions and they are your actions and the actions of no one else.
17Your 22 year old daughter, Jacinta, and your 19 year old son, Brian,[7] also provided victim impact statements (Exhibits 4 and 5), and those statements tell of the practical and of the emotional impact of your offending upon them. They worry for their siblings, they worry for themselves, they worry for their dreams and they worry for the everyday basics of life such as food, such as shelter. These are now their concerns. Your actions have brought despair and pain and uncertainty upon the immediate members of your family who had, up to this time, looked to you as a father, a provider and a protector.
[7] ‘Brian’ is a pseudonym.
18I turn now to your personal circumstances.
19You were born in December 1969 in Kisangani in the Democratic Republic of the Congo. You are thus now 48 years of age and you were turning 47 at the time of this offending. Your father was a coffee plantation owner and had in import/export business. You have two siblings, one sister and one brother, both of whom tragically died in adolescence. You grew up on your father's coffee plantation and you were educated in the Congo to the end of Year 12 and you began working on your father's coffee plantation.
20In 1988 when you were 18 years of age you met and married your wife, Joyce. She was then 14 and in 1990 at the age of 15 your wife gave birth to your first child, Victor. Your daughter, Jacinta, was born in 1995 and your son Brian, born in 1998. Unbeknownst to you, your entire world was about to change.
21Your father had been an associate of former President Mobutu. By the year 2000 the Republic was being torn apart by civil war. Whilst you were out running an errand for your father, your parents were shot and killed by soldiers of Joseph Kabila's revolutionary army and the plantation, which was your inheritance, was seized. You were warned that the same fate awaited you and your family if you did not immediately leave. You and your family got into a Land Rover and fled, leaving everything behind and you managed to get across the border into neighbouring Uganda. No one can be in any doubt of the traumatic and lasting impact that that must have had upon you.
22You then spent four years in a Ugandan refugee camp. Life in that camp was traumatic. Food was scarce, there was an absence of adequate sanitary provision and the risk of malaria was constant. In addition to these conditions the camp was subject to frequent visits by Ugandan rebel soldiers who would rape and murder at will. Throughout all of this period, Mr Dubaku, you managed against insuperable odds to keep your family both together and safe. That is an achievement that stays with you, Mr Dubaku. Indeed, your fourth child, William, was born in 2003 while you and your family were still in the camp. I accept that those experiences have left you with permanent psychological scars which at times you are unable to articulate and which remain a constant part of your personal narrative.
23In 2004 you and your family were granted humanitarian visas for entry into Australia. At the time of arriving in Australia your wife was already expecting your fifth child, Belinda, who was born in 2005. You were settled in Darwin and were provided with housing in Casuarina. You and your wife then worked hard to make your life here in Australia. You both began learning English. You quickly obtained employment, firstly at Woolworths, where you worked nightshift for five years between 2005 and 2010, and at the same time worked at the airport in security, and also studied. You obtained a Level 3 Disability Certificate and were then employed as a disability support worker from 2010 until 2016. Your wife worked as a family day carer.
24After paying a visit to your daughter, Jacinta, who was then studying in Melbourne in early 2016, Joyce expressed her desire to move to Melbourne rather than to return to Darwin. Joyce settled in Melbourne and you returned to Darwin to work for a further six months, flying to Melbourne fortnightly to see your family. You joined Joyce and your children in Melbourne in July 2016. You again studied for a Level 4 Certificate and you and your wife were in receipt of Centrelink benefits.
25It is apparent that the move to Melbourne presented challenges to your sense of self-worth, both as a provider and to your sense of identity. You had been a well-respected member of the Congolese Australian community in Darwin, with friends and community support, all of which were lost to you when you moved to Melbourne. On the material in front of me, there is no compelling information to suggest that you suffer from any mental illness or any psychotic disorder.
26In Melbourne you began to obsess about your wife's fidelity. You believed that she was having a long distance telephone relationship with a man called Jeremy, who lived in the Democratic Republic of the Congo, and that she was remitting money back to him. Enquiries show that money had in fact been remitted by your wife to a man called Jeremy and so such belief on your part was not delusional or psychotic. Your behaviour towards your wife in the days and weeks prior to the offending was shaped and driven by your obsessive jealousy. This was the emotional and factual backdrop to the charged offending.
27In her helpful submissions Ms Piggott, on behalf of the prosecution, submitted that general deterrence and denunciation are important sentencing considerations in cases involving violence against women, particularly when in a domestic setting. Further, that general deterrence has particular significance whenever violence is used against a domestic partner in respect of whom a family violence intervention order is in place. I agree with that submission, both in principle and in line with established authority.
28Ms Piggott pointed to six aggravating features of the offending in Charge 2.
(1) It occurred in a domestic setting where a family violence intervention order had been issued and where your wife had consented to your return home solely through her fear of you. She submitted that there should be proportionate cumulation in any sentence to reflect this fact.
(2) The incident was unprovoked.
(3) Your victim was alone at home and had her back to you at the time of the assault.
(4) Your victim lost consciousness and the assault continued for some time after that loss of consciousness.
(5) You fled the matrimonial home, leaving your victim unconscious and alone, making no attempt to check on her state of health and no attempt to obtain any medical assistance for her.
(6) Your victim was discovered unconscious and bloodied by her 11 year old daughter.
29Ms Piggott submitted that you appeared to have little or no insight into your offending. She submitted that specific deterrence, that is to send a message to you to not repeat your behaviour, is important in this case despite your lack of previous convictions. She submitted that apart from the plea of guilty, which obviously attracts a utilitarian benefit in terms of saving to the community of the time and expense of a trial and of the trauma to witnesses of having to give evidence, there was little indication of any remorse on your part for your offending. She submitted that there was no evidence to support any contention that at the time you were suffering from delusional beliefs and that the motivation for your offending was quite simply one of jealousy.
30Your counsel, Ms Brennan, in her able submissions, placed in front of me your personal circumstances and your background to the offending to which I have set out above. She rightly, in my view, described you as a man with multiple vulnerabilities, both due to your experiences before arriving in Australia and in light of your social, linguistic and cultural isolation in prison. English is not your first language and you have had to date only limited visits in prison and you do not expect many more. You have had no contact with your younger children since your incarceration and you have not spoken to them. Your relationship with your older children is, not surprisingly, complex. I am told that you have taken refuge in your faith.
31Ms Brennan acknowledged the serious nature of your offending and she conceded that for strangulation to induce unconsciousness in your victim would require more than a momentary application of force. She acknowledged that you left your wife in a precarious state, that your children suffered trauma by finding your mother and that your offending in Charge 2 was aggravated by the fact that it was done in breach of an interim intervention order.
32She nonetheless submitted that the seriousness of the injuries actually caused to your wife placed your offending at the moderate end of the range of seriousness for an offence of this kind. She submitted that this was not a case where I could find that your proven intent was to cause the maximum possible injury. The exact duration of the substantive offending was unable to be determined. There is no evidence of humiliation and degradation of Joyce, no evidence to suggest any weapons were used, and no evidence of permanent brain injury or lasting physical disabilities or disfigurement so often encountered in offending of this kind. Ms Brennan recognised the lasting psychological trauma suffered by your wife.
33Ms Brennan pointed to your early plea of guilty as bringing a genuine utilitarian benefit. She submitted to me that your plea could be viewed by me as indicative of your remorse. Whilst I give you full credit for your plea of guilty it is, in my view, difficult on the material in front of me to assess your level of remorse. She pointed to your past antecedents, to your faith and the consequential community support as demonstrating reasonable prospects of rehabilitation. In my view, your prospects of rehabilitation are at this point guarded at best.
34Mr Dubaku, intentionally causing serious injury is a serious offence, as is clear by the maximum penalty that Parliament has sought fit to impose. The objective seriousness of your offending, Mr Dubaku, lies in the facts as I find them to be, rather than in any characterisation of where in a range of seriousness particular offending lies.
35In the days and weeks preceding your attack upon your wife you had become consumed by an obsessive jealousy of her. Mr Dubaku, jealousy in relation to another human being is built upon a belief that someone else has what in fact belongs to you. But no one is the property of anyone else. In fear of you your wife sought protection from the court. You ignored the order of the court, thinking it did not apply to you. That, I find, is a circumstance of aggravation of Charge 2. Your jealousy grew apace and you strangled your wife, reducing her to unconsciousness and in short, left her for dead. You left her unconscious and bloodied without a thought to her medical needs. You made no effort to seek medical assistance for her but left the scene, driven, in my view, by a combination of your moral cowardice and a sense of your self-preservation. That, I find, is a circumstance of aggravation. The result of your abandonment of your unconscious wife was that your 11 year old daughter came home to discover her, a fact of which I am sure will have a lasting impact upon her. That, I find, is a circumstance of aggravation. Whilst it is true, as your counsel Ms Brennan submitted, that this was not a case involving sustained and protracted assault where a weapon was used or other acts of degradation and humiliation were perpetrated, nonetheless I view this as a serious example of a serious offence.
36Mr Dubaku, in sentencing you I must have regard to a range of different factors. I must give effect to principles of both general deterrence and specific deterrence. I must deter others from behaving like you did and I must deter you from any repeat of such behaviour. I must express the community's denunciation of your conduct and I should promote, if possible, your rehabilitation. I take into account the effect that your offending has had not only on your wife but on your family and I must have regard both to current sentencing practices and to the statutory maximum penalty for the offence that you have committed. In short, I must try to balance your personal circumstances, Mr Dubaku, with the circumstances of your offending. Clearly, principles of general and specific deterrence and denunciation are the primary sentencing considerations in this case.
37I give full effect to the mitigatory factors to which I have been referred. For the avoidance of doubt, I pay particular regard to:
(1) Your excellent antecedents;
(2) Your succeeding in the face of unimaginable adversity in protecting your family;
(3) Overcoming your tragic and traumatic past and making a new life through hard work and study here in Australia;
(4) Your faith and the support that will provide you, both whilst you are in custody and when you are back in the community;
(5) Your early plea of guilty, which I regard as having been entered at an early opportunity;
(6) The forgiveness provided to you by your wife;
(7) The ongoing support that you retain from your children and which will be a protective factor when you are back in the community and when you try to rebuild your relationships with them;
(8) The fact that this will be the first time in prison for you and that, in my view, prison will be more burdensome for you in view of your cultural and linguistic and social isolation.
38Nonetheless, this court must send a message to the community at large that violence against women will not and can never be tolerated under any circumstances.
39Mr Dubaku, if you would like to stand up, please.
40On Charge 1, persistent contravention of a family violence intervention order, I sentence you to a term of imprisonment of 18 months.
41On Charge 2, intentionally causing serious injury, I sentence you to a term of imprisonment of five years and six months.
42On Charge 3, persistent contravention of family violence order, I sentence you to a term of imprisonment of 12 months.
43On the summary charge of contravening a family violence Intervention order I sentence you to a term of imprisonment of one month.
44I order that nine months of the sentence on Charge 1 and six months of the sentence on Charge 3 run cumulative to each other and cumulative to the sentence on Charge 2.
45This makes a total effective sentence of six years and nine months' imprisonment. I fix a non-parole period of five years.
46Pursuant to s.18(4) of the Sentencing Act 1991, I declare that you have served 466 days of the sentence that I have imposed upon you and I direct that this be entered into the records of the court.
47Pursuant to s.6AAA of the Sentencing Act 1991, I indicate that but for your plea of guilty, you would have been sentenced to a term of imprisonment of nine years with a non-parole period of seven years.
48Mr Dubaku, I will be making what is called a forensic sample order. This order means that the police are entitled to take from you a buccal swab for the purposes of gathering your DNA so that it can be kept on a central database. The police are entitled to take the swab from you and should you refuse to provide the swab, they are entitled to use reasonable force so as to take the swab. I am confident that there will be no issues around that, Mr Dubaku, but I am required by law to read this to you.
49Mr Dubaku, can I say that the life that you have led shows that you are more than this offence and I would like you to remember that. For all of the family, I appreciate how difficult this has been and I hope with all of my heart that you are able to rebuild and that you can heal.
50Ms Brennan, are there any custody management issues?
51MS BRENNAN: No, Your Honour.
52HIS HONOUR: No, all right then. All right, you can take Mr Dubaku down. Ms Piggott and Ms Brennan, thank you for your assistance in this matter. I also want to thank the informant for the work done. Thank you.
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