Director of Public Prosecutions v Haileselassie
[2024] VCC 2071
•13 December 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR-23-02157
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| HABTOM HAILESELASSIE |
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JUDGE: | HIS HONOUR JUDGE LAURITSEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 2 & 12 December 2024 | |
DATE OF SENTENCE: | 13 December 2024 | |
CASE MAY BE CITED AS: | DPP v Haileselassie | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 2071 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Charge of recklessly cause serious injury and resist emergency worker on duty – early plea of guilty – no relevant criminal history – intoxication – Verdins – Bugmy – good prospects of rehabilitation.
Legislation Cited: Sentencing Act 1991 (Vic).
Cases Cited: R v Verdins [2007] VSCA 62; Bugmy v R [2013] 249 CLR 571.
Sentence: 30-month Community Correction Order.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms P. Thorp | Office of Public Prosecutions |
| For the Accused | Mr M. McLellan | Emma Turnbull Lawyers |
HIS HONOUR:
Introduction
1Habtom Haileselassie, with your consent, on the charge of recklessly causing serious injury and the summary charge of resisting an emergency worker on duty with a conviction for both, I will sentence you to a community correction order of 30 months duration with the following special conditions:
(a) to perform 250 hours of unpaid community work;
(b) to undergo assessment and treatment for alcohol abuse or dependency; and
(c) to undergo mental health assessment and treatment.
2All hours satisfactorily completed under (b) and (c) will count as hours of unpaid community work for the purposes of (a) above, which is the unpaid community work condition.
3You pleaded guilty to a charge of recklessly causing serious injury and the summary offence of resisting an emergency worker on duty. The injury offence carries a maximum penalty of 15 years imprisonment. The circumstances of your offending are set out in the ‘amended summary of prosecution opening for plea’, which is Exhibit A.
Circumstances
4At about 6.03 am on 4 June 2023, the victim and his friends were waiting for an Uber at an intersection in Sunshine. The group walked towards the victim’s vehicle. You and another male followed that group.
5You and your companion spoke to this group. As the victim moved away from you, you moved towards him, removed your jacket, and took up a fighting stance. Other people placed themselves between you and the victim and prevented you moving towards the victim several times.
6Nevertheless, you took hold of the victim by his waist and pulled him to the ground. Others separated both of you. The victim rose and walked away. You moved towards him but others prevented you. You started speaking to others.
7At about 6.06 am, the victim walked back to his vehicle and was helped into the driver’s seat by a friend. A male walked you to the other side of the road. However, you went towards the victim, removed your jacket, and challenged the victim to fight. Again, others intervened and pushed you away. You persisted in your attempt to approach the vehicle before and after he left the vehicle. The victim re-entered the vehicle and drove away but returned in about two minutes to collect his friends.
8The victim said to you, ‘What is your problem? Why don’t you leave us?’ You pushed the victim to the upper chest and neck. As a male stepped between you, preventing the victim from approaching you, both of you grabbed each other and tussled. You struck the victim’s head with your right arm and both of you fell to the ground with the victim’s head striking the road surface. You prevented the victim from rising and punched his head twice. A further punch was prevented by a female. These circumstances constitute the charge of causing serious injury recklessly.
9For about two minutes, the victim lay motionless on the ground. Blood came from his ears. He was helped to his feet but could not stand unaided. The description of your actions were you bounced up and down and moved quickly around the scene. You pushed another male and were restrained by a woman. Continuing your bouncing actions, you chased another male.
10At about 6.28 am, police members arrived. After requesting you to sit down, the police forced you to the ground. You put your hands in the pockets of your jacket and held to the lining and tensed. You struggled as they handcuffed you and abused them. These circumstances constitute the summary offence of resisting an emergency worker on duty. This offence is punishable by a fine of 60 penalty units or imprisonment for six months.
Interview
11You were arrested. At 7.10 pm, a medical practitioner examined you and determined you were unfit to be interviewed.
12The next day, Maaike Moller, a forensic physician, examined you and determined you were now fit to be interviewed. During the interview, you said among other things, you were drunk, having drunk alcohol extensively during the previous day. It was the victim who knocked you unconscious and you remained that way for about 10 to 15 minutes before regaining consciousness and defending yourself. You did not hit the victim but hit his friend. You were angry when the police arrived. They dragged your face along the road.
13I have viewed some CCTV footage. It is clear you struck the victim. The footage does not show or did not show the arrival of the police.
Moller
14From the medical notes of the Royal Melbourne Hospital, Dr Mollar was able to explain the diagnosis and treatment received by the victim.
15First, a CT scan revealed:
(a) a minimally displaced comminuted fracture of the left parietotemporal bone with an epidural haematoma directly underneath. Dr Mollar explained an epidural haematoma is a collection of blood between the outermost of the three layers around the brain and the skull;
(b) there were bilateral subarachnoid haemorrhages with a small volume of blood. The subarachnoid haemorrhage is a bleed between the two innermost of the three layers around the brain;
(c) the fracture in (a) extended into the left petrous temporal bone but there was no evidence of ossicular chain dislocation;
(d) there was a small left periorbital haematoma;
(e) there were no fractures of the facial bones or bones of the cervical spine.
16On 6 June, the victim’s skull was opened surgically and the extradural haematoma was evacuated.
17An examination by an ENT specialist did not reveal tinnitus or any disturbance of the function of the face. The victim was discharged from the hospital on 8 June 2023.
18Overall, Dr Mollar identified a fracture of the skull, bleeding around the brain and bruising around the eye. She expected the recovery time from surgery to be weeks or months and an inability to drive for six months.
19Dr Mollar wrote another report after being provided with clinical notes up to 8 September 2023. They showed:
(a) fluid in the victim’s left ear causing hearing loss and tinnitus;
(b) severe difficulty sleeping; and
(c) mild concussive symptoms.
Victim impact statement
20The victim, Bereket Mengesha, made two impact statements on 5 December 2023 and 30 November 2024. In the first statement, Mr Mengesha spoke of the financial effect of the injuries, arrears of mortgage payments of $17,176 and other expenses and loss of earnings of $39,624.
21The effects of his injuries in the first statement were broadly described as incapacity for work, prolonged pain and limited mobility. The injuries resulted in significant treatments.
22Psychologically, it has affected his sleeping and he needs to take sleeping tablets. He suffers from anxiety and depression. The former is in the form of post-traumatic stress disorder. They had caused his isolation from his family, friends and his community.
23In his second statement, he reiterated the financial consequences and emphasised the emotional consequences: his isolation from friends; his inability to participate in community activities. He attributes the emotional impact of the assault to his inability to work for six months.
24In the second statement, there is no mention of difficulties in sleeping, loss of hearing, tinnitus, or the mild concussive symptoms mentioned by Dr Mollar. The persisting effects were psychological, which are not to be denigrated.
Criminal record
25Although you have a criminal record, it is of no relevance to the charges in this proceeding.
Personal
26You are now 37 and were born in Ethiopia, near the border with Eritrea. You have four siblings and are the second oldest. Your family are of Coptic Orthodox Christian background and hold very strong religious beliefs.
27The region of Ethiopia you were born in was disputed by both Ethiopia and Eritrea. As a result, neither community accepted your family. You were ostracised by members of each community and your childhood was challenging.
28A relationship between your parents was conflicted and your father was violent towards your mother and other family members. Your parents separated when you were a child. You remained living with your father and your mother relocated to Saudi Arabia.
29At the age of 11, you moved from Ethiopia to Sudan with your maternal grandmother and some siblings. You resided in a refugee camp for about two years before moving to the Sudanese capital, Khartoum, in search of work. During this period, you were intensely deprived. However, once you moved to Khartoum, you were able to source food and to eat.
30At this point in your life, at around 15, you had lost contact with both of your parents. Your mother had moved to Australia. However, you were reunited with her with the assistance of the Red Cross. You and the rest of your family came to Australia in 2004 and resided in Canberra. Your family have remained there ever since. You moved to Melbourne in 2022.
31You have a good relationship with your mother and siblings, two of which wrote character references in support of you. Your father died in Africa in about 2017.
Education and work
32Your first language is Tigrinya. You learnt English after arriving in Australia in 2004. You completed Years 11 and 12 in Canberra. You found high school difficult due to your poor English literacy.
33After school, you studied commercial cookery. You qualified as a chef and worked for five to six years as one, including within the kitchens at Parliament House in Canberra. You then moved to Western Australia with a view to work in the mines, however, you were unable to do this due to a deterioration in the economic circumstances at the time. You also held construction work in both Western Australia and Canberra.
34Currently you’re working as an Uber driver.
Relationships
35You've only had one significant previous relationship. You share no children together however; she has two children from a previous relationship. You met in Sudan and were in an on-and-off relationship for about 21 years. You lived together for three of these years. This relationship has not been successful due to the non-approval of your families.
Substance abuse
36You started drinking alcohol at 17 however rarely drank. In 2008, you were convicted of driving while exceeding the prescribed concentration of alcohol, being nearly three times the limit. You have undergone drug and alcohol counselling through ACSO however disengaged after three months.
37When you resided in Canberra, you used cannabis on an irregular basis and reduced your usage when you moved to Melbourne in 2022. You have ceased all use from early 2023.
Psychologist
38Patrick Newton is a clinical and forensic psychologist. At the request of your solicitors, he interviewed you on 21 August 2024.[1]
[1]Report dated 25 November 2024.
39Diagnostically, Mr Newton saw your alcohol use as sufficiently intense to satisfy the ICD-11 criteria for harmful use of alcohol with a risk of more serious alcohol-related problems. Your excessive consumption of alcohol was linked to your increased paranoia and this offending.
40Mr Newton diagnosed a major depressive disorder with anxious distress, delusional disorder of the persecutory type and harmful alcohol use. He recommended various psychological interventions.
41An effect of your depressive disorder is your attempts at suicide in September of 2023 by hanging and drowning. The latter was stopped by the police and followed by an admission to the Sunshine psychiatric unit.
42Your delusional disorder is based on your paranoid beliefs; however, these beliefs are not accompanied by perceptual disturbances or are bizarre in content.
43Mr Newton saw your alcohol use and paranoid ideation as having a greater effect on your ability to think clearly than the symptoms of your anxiety and depression. The relationship between alcohol and paranoia was circular. By drinking, you became more paranoid, and when paranoid, you drank more. The combined effect of each meant you are more likely to perceive benign stimuli as threatening, to have difficulty containing your impulses, to think clearly, weigh alternative courses of action and reason with composure.
44In prison, you will experience more regular and intense episodes of depression and anxiety during any extended period in custody. Your paranoia will increase the level of conflict with other prisoners and make the delivery of services to you more difficult.
45There is some risk of a deterioration of your condition in custody.
46In that regard, I refer to what Mr Newton said in paragraph 64 of his report, that you should be treated by psychotropic medicines, followed by psychological interventions.
Discussion
47Section 5(1) of the Sentencing Act1991 describes the purposes of sentencing. Each of those purposes is relevant to you.
Nature and gravity of the offences
48The duration of the offending is short, and I am speaking specifically about the charge of recklessly causing serious injury, for about 15 seconds.
49Viewing the CCTV footage, your actions during and after the assault are unusual and bearing in mind you and the victim were strangers to each other. It lacks premeditation. You appear to strike the victim three times. Whether one blow could have caused the victim’s injuries merely emphasises the force of the blows you landed. A weapon was not used. You did not kick the victim when he was on the ground. You acted alone.
50Dr Moller does not suggest the injuries were life-threatening in the absence of medical intervention. The effects of the injuries were long lasting and their psychological impact on the victim but not apparently in their physical impact.
Guilty pleas
51Your guilty pleas were made early in the process, which starts with the laying of the charges and finishes, theoretically, with the verdict of a jury.
52Apart from being evidence of your remorse, they assist the criminal justice system by avoiding a jury trial and avoiding the need for witnesses to give evidence.
Bugmy[2]
[2] Bugmy v R [2013] 249 CLR 571 (‘Bugmy’).
53Because of the practice of obtaining psychological assessments, the issues posed in Bugmy is usually comprehensively described. Mr Newton considered your childhood deprivation increased the risk of development of these disorders. After you were charged with these offences, your mental health deteriorated. You stopped psychological treatment. You were seriously suicidal by September of 2023.
54Your childhood conflict between your parents, the violence you witnessed within the family and externally, the departure of your mother, your ostracism by the local communities, fleeing to Sudan and deprivation you experienced in a refugee camp.
55As Mr Newton said:[3]
‘In total, these experiences saw Mr Haileselassie’s early years dominated by insecurity and dislocation, and punctuated by experiences of his significant emotional distress’.
[3]At [24].
56Plainly, the general and specific understanding of the principle in Bugmy’s case apply and act to moderate my sentence.
Verdins[4]
[4] R v Verdins [2007] VSCA 62 (‘Verdins’).
57The case of Verdins sets out six ways in which impaired mental functioning is relevant to sentencing. Your counsel relied on three of those ways, principles 3, 5 and 6.
58Principle 3 deals with general deterrence and the effect of your symptoms on your mental capacity at the time of the offending or the date of sentencing or both. In answer to a question asked about your impairment and your ability to exercise appropriate judgment, to make calm and rational choices or think clearly at the time of the offending, Mr Newton said in part:[5]
‘Mr Haileselassie’s anxiety and depression would both have had a mild effect upon his capacity to think clearly. More serious difficulties with his reasoning would have been caused by his ingestion of alcohol and his paranoid ideation…’
[5]At [60].
59He explained the relationship between alcohol and your paranoia. Drinking alcohol worsened your paranoid thoughts, but you drank more when experiencing the effect of your paranoia. Mr Newton does not separate the effect of either on your decision-making abilities. Possibly, that would be an impossible task. But from the perspective of the principle of principle 3, it moderates the sentencing purpose of general deterrence.
60Relying on Mr Newton’s assessment, principle 5 applies. In prison, you would be vulnerable to experiencing more regular and intense episodes of depression and anxiety during any extended period of custody.
61As to principle 6, Mr Newton speaks of some risk of deterioration in the intensity of your symptoms over the course of an extended period of time in custody. This language is too tentative to raise the principle which requires a ‘serious risk’. Some risk is not a serious risk.
Prospects of rehabilitation
62You have the support of family and friends, as evidenced by some of the letters of reference tendered. You are fully employed as an Uber driver.
63You have no previous convictions or finding of guilt involving violence. There is nothing pending determination. As I said, your guilty pleas are evidence of your remorse, and I accept you re remorseful.
64Your rehabilitation is dependent on the successful treatment of your disorders, which will be assisted by the sentences I propose. Overall, I consider your prospects of rehabilitation are good.
Other reports and letters
65I have received a community correction order assessment outcome report and a Mental Health Advice and Response Service report.
66I note the reports from the Court Integrated Services Program and from ACSO and the letters from friends and family members.
Current sentencing practices
67In the ‘defence outline of plea submissions’, your counsel listed a number of cases in this Court where a community correction order was imposed for the offence of recklessly causing serious injury. In another document, he summarised a number of those cases.
68The Director’s counsel relied upon a summary of seven cases, some in this Court and the rest in the Court of Appeal. She also relied upon the sentencing snapshot for this offence prepared by the Sentencing Advisory Council.[6]
[6]Sentencing Snapshot 289.
Sentence
69On the charge of recklessly causing serious injury and the summary charge of resisting an emergency worker on duty, with conviction, I will sentence you to a community correction order of 30 months duration with the following special conditions:
(a) to perform 250 hours of unpaid community work;
(b) to undergo assessment and treatment for alcohol abuse or dependency; and
(c) to undergo mental health assessment and treatment.
70All hours satisfactorily completed under (b) and (c) will count as hours of unpaid community work for the purposes of (a) above, and there are seven days of pre-sentence detention which I have taken into account in reaching this sentence.
S 6AAA
71If you had not pleaded guilty to these charges but were found guilty after a trial, I would have sentenced you to a combination of six months imprisonment and the same community correction order.
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