Director of Public Prosecutions v Siyou
[2018] VCC 1976
•21 November 2018
| IN THE COUNTY COURT OF VICTORIA | Revised Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR-17-01560
| DIRECTOR OF PUBLIC PROSEUCTIONS |
| v |
| ABEL SIYOU |
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JUDGE: | HIS HONOUR JUDGE MASON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 31 October 2018 | |
DATE OF SENTENCE: | 21 November 2018 | |
CASE MAY BE CITED AS: | DPP v Siyou | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 1976 | |
REASONS FOR SENTENCE
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Subject:Plea - sentencing
Catchwords: Aggravated burglary - causing injury recklessly
Legislation Cited: Sentencing Act 1991
Cases Cited:
Sentence:4 years and 6 months’ imprisonment, 3 years non-parole period
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APPEARANCES: | Counsel | Solicitors |
| For the Crown at hearing For the Crown at sentence | Mr D. Plummer Ms T. Schultz | Office of Public Prosecutions |
| For the Accused at hearing For the Accused at sentence | Mr J. Barrera Ms L. Conwell | Stary Norton Halphen |
HIS HONOUR:
1 Abel Siyou, you have pleaded guilty to one charge of aggravated burglary and one charge of causing injury recklessly.
- Aggravated burglary carries a maximum penalty of 25 years' imprisonment.
- Causing injury recklessly carries a maximum penalty of 5 years' imprisonment.
2 You were born on 10 November 1988 and are now 30 years old. You were aged 28 at the time of the offending in May last year.
3 You have a criminal record to which I will refer in more detail later.
4 At the time of the offending you were living in a unit in Ascot Vale. The primary victim in this matter was born on 10 October 1974. She lived in a unit some doors up from you in the same street (“the premises”). She lived there alone. She had a dog. She was a student. Her daughter would sometimes stay in the second bedroom.
5 You and the victim had known each other for about three years. You sometimes visited her. About 18 months ago she told you not to visit her anymore. You had let her dog out of her house a couple of times. She was concerned that she might lose her dog. After this you two would occasionally see each other in the local area. The victim believed that there was no animosity between you.
6 The circumstances of the offending are as follows.
7 At about 8.30 am on 4 May 2017, the victim saw you as she walked to the tram on Epsom Road. You asked her for a cigarette. She gave you one. She did not stop because she did not want to miss her tram.
8 At about 2.15 pm on 10 May 2017, the victim was at home with her daughter and a female friend. They were in the lounge room. You rang the doorbell. The daughter walked to the front door and opened it. You asked, "Where's [name]?" Her daughter said, "She's busy." You then left.
9 About ten minutes later you again rang the doorbell. The daughter again opened the door. You yelled, "Where's [name], fuckin' bitch?" You were ranting. The victim heard the yelling and went to the front door. When she saw you she said, "What's the problem?" You yelled something back at her. She replied with something like, "You're tripping" and closed the front door.
10 The victim and her daughter went back to the lounge room. You began banging on the front door. You screamed, "Open up you bitch." The victim heard a loud bang and then banging on her window. The victim walked back to the front door. She yelled out that she was calling the police. She went back to the lounge room. You continued banging on the front door.
11 As the victim was standing in the lounge room she saw you jump onto a cage that covered the gas meters underneath her kitchen window. You pulled the flyscreen off and tried to enter the kitchen. She pushed you out. You began kicking the kitchen window, which broke. The glass fell onto the kitchen sink but did not shatter. You were screaming and acting crazy. You yelled that the victim was a “racist bitch”.
12 The victim was worried for both her daughter and her friend. She did not know what you were capable of. Her daughter, very scared, went into the lounge room. The friend saw you kicking at the kitchen window and trying to come inside. She panicked and phoned 000.
13 You began coming in through the kitchen window. You had your head, shoulders and arms inside. The victim picked up the glass sheet which had fallen into the sink and pushed it back toward you. You grabbed her hair with both hands. You repeatedly pulled her head towards the window sill. You were holding a large knife with a shiny blade in your right hand. You then stabbed her left upper arm. She saw drops of blood on the kitchen floor. You continued to yell.
14 The victim yelled out to her daughter that she had been stabbed and needed an ambulance. You continued to hold her and again stabbed her left upper arm.
15 The daughter came into the kitchen. You still had hold of the victim's hair. Her head was down as she held her left arm. She could not break free of you. Her daughter began pulling her back, yelling and screaming at you to let her go. You eventually let her go but you remained standing on the cage outside the window. The daughter grabbed a serrated bread knife from the knife block and told you to leave.
16 The victim grabbed a cloth to wrap around her left arm. You remained standing outside. You threw something through the kitchen window. The victim asked her daughter to grab another towel. The friend was talking on the phone to the ‘000’ call operator. You began banging on the front security door. They all went to hide in the victim's bedroom. They tried to lock the door but realised that the lock is on the outside. The victim could still hear you yelling out. They went to the second bedroom and locked the door. They put a mattress up against the window in case you tried to come in through that window.
17 The police arrived a short time later. They approached you. You appeared agitated, erratic and drug-affected. You complied with police instructions to move from the premises but you were ranting and shouting abuse towards the apartments. You were arrested and searched. A wooden-handled kitchen knife, about 25 centimetres long with a silver blade, was found in the front of your pants. There appeared to be blood on the blade. You then became more aggressive and abusive and you were put into a police divisional van.
18 Police observed a broken window at the front of the premises. A damaged flyscreen and a second knife which had what appeared to be blood on the blade were found on the ground below the broken window. Police entered the premises. They spoke to the victim, her daughter and her friend, who had all come out of the bedroom after hearing police arrive.
19 The victim had been very worried that her daughter might be hurt. Her daughter had been terrified for their safety. She had thought that you were going to kill her mother. The two of them hugged each other and cried.
20 An ambulance arrived. The victim was examined by paramedics. She had two deep lacerations on her left arm, both involving subcutaneous tissue. There was bruising and swelling to her left arm. The injuries were treated. She was then taken to the St Vincent's Hospital Emergency Department.
21 The victim was examined by a doctor at the Emergency Department. She was found to have two incisional wounds to her left upper arm which was swollen. The first was a large wound in the mid lateral region which was oozing slightly. The second was a 4-5 centimetre wound to the lower lateral arm. There was no surrounding bruising or abrasions and the wounds had clean edges. She had a small dot-like wound to the joint below the fingertip of the fifth finger of her right hand. All three wounds had the appearance of incisions. No other wounds were noted.
22 The victim was given pain relief and a tetanus injection. Her left upper arm and right fifth finger were X-rayed. These did not reveal any bony injuries but did suggest the presence of glass foreign bodies in the fifth finger. Both arm wounds were cleaned, sutured and dressed. A small glass fragment, approximately 3 millimetres, was removed from the fifth finger. Upon discharge from the Emergency Department, the victim was referred to the plastics surgical team outpatient clinic.
23 You were arrested and taken to Moonee Ponds Police Station. Whilst in custody you were yelling and screaming at the floor and stamping your foot. You were grinding your teeth and appeared agitated. You refused to answer questions. At about 5.50 pm police contacted paramedics who examined you. They advised that you were alert and orientated but appeared drug-affected. At 6.50 pm you were examined by a Clinical Forensic Medicine Registrar who assessed you as not fit to be interviewed at that time.
24 The victim and her daughter both made victim impact statements. Each has described the very understandable emotional distress and trauma she has suffered as a result of the incident. The mother has suffered feelings of insecurity in her home, fear, worry, anxiety and hyper-vigilance when leaving the home through fear of meeting you, and has been referred to psychiatric care. She has also suffered physical pain, has residual scars and had her studies disrupted. Her daughter has suffered feelings of paranoia, startle reaction, hyper-vigilance, anxiety, disturbing dreams, fear for her safety, loss of ability to engage in employment and fractured relationships. The trauma of her experience has also aggravated pre-existing mental health issues.
25 A plea offer was made on 26 July 2018. The offer was accepted on 3 August 2018. You pleaded guilty at a mention on 9 August 2018. I accept that the delay before plea settlement was brought about by the investigation process into your fitness to plead.
26 You were arrested and remanded in custody on 10 May 2017. You have now served 560 days pre-sentence detention up to but not including today.
27 I now turn to your personal circumstances.
28 As I noted earlier, you are now aged 30 and were 28 when the current offending occurred.
29 Your criminal record commenced in 2008 in the Robinvale Magistrates' Court when, aged just 19, you were convicted and fined for resisting and assaulting police and being drunk in a public place.
30
Magistrates' Court appearances have continued over the intervening years, with convictions for drug, violence and dishonesty offending, failing to answer bail and contravening family violence intervention orders. You have been variously fined, gaoled, given a partially suspended sentence and a Community Correction Order, both of which you have breached. You were subject to another Community Correction Order at the time of this offending.
31 Most recently, in April 2017 in the Sunshine Magistrates' Court you were given nine and a half months' imprisonment for several violence, dishonesty and weapons offences, and the Community Correction Order you had been put on in January 2016 for, amongst other offending, causing injury recklessly, and breached was extended to April this year, and breached some four weeks later by the current offending.
32 You have had a very disadvantaged life in your early years in Ethiopia, effectively abandoned by your parents then abused and shunned by your extended family as you had been born out of wedlock. Your mother had emigrated to Australia and many years later sponsored you to live here. You arrived in 2007 after 16 years of separation from her. Unfortunately your relationship with your mother broke down very early due to the prolonged period of separation and you could no longer live with her. Your mother passed away in 2011. You had a period of homelessness before being assisted by the Footscray Youth Housing Group and Wombat Housing Services.
33 According to hospital records you completed school to Year 11 and have subsequently worked in multiple jobs, but not at all since 2008.
34 Justice Health records note that you were diagnosed with post traumatic stress disorder after an admission to Orygen Youth Health on 26 May 2007. The records also note instances of you having heard voices in your head whilst in custody.
35 A report from Associate Professor Andrew Carroll was tendered on your plea. In summary Associate Professor Carroll opines as follows:
· There is no clear evidence that you now suffer from a mental illness.
· You have developed a significant substance use habit, principally methamphetamine, and have suffered a number of methamphetamine-induced psychotic episodes. Although you are at high risk of developing a longer term psychotic illness in the wake of copious methamphetamine use, there is no good evidence to suggest that you have acquired such an illness as yet.
· You were likely to have been actively psychotic at the time of the offending.
· Given the clear evidence of your methylamphetamine usage and the rapidity of the resolution of these symptoms, it is likely that this psychotic episode was a methylamphetamine-induced psychosis rather than being indicative of an underlying enduring mental illness.
· Your disturbed mental state was the reaction of a healthy mind to external stimuli (being methylamphetamine).
· You are currently diagnosable with a Mixed Personality Disorder with paranoid and anti-social features, consistent with a person who has had a traumatic development period with emotional neglect, and Methamphetamine Use Disorder which is currently in remission in prison.
· You appear to have little insight into the extent of your substance use disorder and to have little inclination to address your evident drug problem.
· From a psychiatric perspective, you would benefit from substance use counselling and possibly residential drug rehabilitation; however the likelihood of you engaging with such services appears to be very limited.
36
The act of aggravated burglary is regarded as very serious offending reflected in part by the maximum penalty imposed by Parliament of 25 years' imprisonment. Your culpability was compounded by wounding by use of a knife. This type of frightening offending by drug-addicted persons against vulnerable citizens is, unfortunately, prevalent and a source of great community concern. Current sentencing practices indicate that principles of denunciation, punishment and general and specific deterrence and the protection of the public are usually prominent and warrant a sentence of immediate imprisonment and, depending on the circumstances, often for a significant period.
37 Whilst the offence of causing injury recklessly can be considered as a discrete offence within a course of conduct, the circumstances of the use of the knife are, in my view, such as to require some cumulation.
38 In mitigation I take into account the submissions of your counsel and in particular:
· your plea of guilty both for its utilitarian use as well as expression of remorse;
· that your plea was made at an early date after considerations into your fitness to plead had resolved;
· your quite tragic early life experiences, characterised by emotional neglect which deprived you of appropriate care and support from a very early age, and the absence of any clear, healthy, adult attachment figures;
· your significant long term methamphetamine use habit;
· the very restricted onerous circumstances you have endured in remand custody; and
· your prospects of rehabilitation which I accept must be guarded.
39 I accept that your circumstances of deprivation and social disadvantage should moderate the weight I would otherwise have applied to personal and general deterrence. I also accept that your circumstances are such that in sentencing you, care needs to be exercised so as to avoid a crushing sentence.
40 Mr Siyou, could you please now stand.
41 On Charge 1 of aggravated burglary, you are convicted and sentenced to four years' imprisonment.
42 On Charge 2 of causing injury recklessly, you are convicted and sentenced to two years' imprisonment.
43 Charge 1 is the base sentence.
44 I direct that six months of the sentence imposed on Charge 2 be served cumulatively on the sentence imposed on Charge 1.
45 The total effective sentence is four years and six months' imprisonment.
46 I direct that you serve a minimum period of three years' imprisonment before being eligible for parole.
47 Pursuant to s.18(4) of the Sentencing Act 1991, I declare that the period of 560 days not including today be reckoned as time already served under this sentence and I direct that the fact of this declaration and its details be noted in the records of the court.
48 Pursuant to s.6AAA of the Sentencing Act, but for your plea of guilty the total effective sentence that would have been imposed is seven years' imprisonment with a minimum period of five years to be served before eligibility for parole.
49 At the plea hearing the prosecution sought a disposal order in relation to the items seized by police to which you consented, and I have made that order today.
HIS HONOUR: You may be seated Mr Siyou. Is there anything else from either counsel?
MS SCHULTZ: No Your Honour.
MS CONWELL: No Your Honour.
HIS HONOUR: Thank you for your attendance.
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