Director of Public Prosecutions v Tewoldeberhan
[2023] VCC 1737
•26 September 2023
*
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR-22-01734
Indictment No. N10881674.1
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ABRAHAM TEWOLDEBERHAN |
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JUDGE: | HIS HONOUR JUDGE TINNEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 25 September 2023 | |
DATE OF SENTENCE: | 26 September 2023 | |
CASE MAY BE CITED AS: | DPP v Tewoldeberhan | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1737 | |
REASONS FOR SENTENCE
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Catchwords: ICI x 2. Criminal damage. Stabbing father and brother. 27 years of age; Very short irrelevant prior criminal history. Early plea; Worboyes v The Queen [2021] VSCA 169. Serious unprovoked attack with knife in the family home. Deep wound to the neck of father, psychosis; Verdins. Risk of deportation
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr J. Andrews | Office of Public Prosecutions |
| For the Offender | Mr M Sturges | Angus Cameron Lawyers |
HIS HONOUR:
1 Abraham Tewoldeberhan, you were fully arraigned in front of another Judge on 19 June of this year and pleaded guilty to two charges of intentionally causing injury and one charge of criminal damage. The matter was adjourned off for the plea in mitigation to be conducted on 25 September. That plea was conducted yesterday and I adjourned the matter overnight to today’s date so that I could pass sentence upon you.
2 The maximum penalty for each of these crimes is 10 years' imprisonment.
3 You were born in June 1996 and so are now 27 years of age and have admitted a very short prior criminal history of no relevance to my task.
Facts
4 The prosecutor, Mr Pickering, opened the matter to the court yesterday in accordance with the written summary of prosecution opening dated 7 September 2023.
5 Mr Sturges, who appears for you and appeared yesterday, told me that this was an agreed summary and so it was marked as Exhibit A on the plea.
6 In such circumstances, there is really no point in my setting out all of the agreed facts in these my reasons. I will provide only a brief summary of your offending and that is so that anyone who happens to access these reasons might have a better understanding of the serious nature of your crimes and the reasons for my ultimate sentences.
7 The summary discloses that on 2 May 2022, you had absconded from the Austin Hospital mental health team. It seems from the materials filed on your behalf that clinicians from that team visited you at home on 2 May. That was owing to concerns they held as to a deterioration in your mental state, thought to arise from either non-compliance or suboptimal compliance with your prescribed medication. As a result, the treatment order which had been in placed had been varied to an inpatient one. See the report of Dr Ong, addendum p2.
8 You absconded before the clinicians could arrange your transport to hospital. Police were advised of that at about 1:26 pm, but they were not able to locate you.
9 You went back to the family home in Duff Parade in Viewbank, and it was not a friendly visit. You no longer lived there. You lived in a flat in Ivanhoe. Your father, Berhe Measho, lived at the Viewbank address with your younger brother, Kelati, who was 21 years of age. At around 2:20 pm, your father opened the door and you pushed past him into the house and tried to locate your younger brother. You found him and after some quite strange questioning on the landing upstairs, you then assaulted him by punching him on the cheek. There was a struggle and punches were exchanged and you then grabbed your brother and pushed him hard up against the window on the landing. His head and back shattered the glass (hence Charge 3 on the indictment). He in fact feared he would be thrown from a window and called for help from his and your father who was downstairs. Your father came up and separated the two of you and you responded by then punching your father to the jaw. Your father fell to the ground.
10 Your father and brother then took refuge in your brother’s bedroom. They locked the door. Your father called Triple 0 whilst your brother called another one of your brothers to get some assistance. You, meanwhile, had found a kitchen knife and then came back upstairs and broke the locked bedroom door. Your brother picked up some scissors to defend himself if it became necessary. Well, it certainly became necessary.
11 Your father stood between you and your brother and he was begging you to stop. He asked you if the dispute was about money. You said it was not about money.
12 You came closer to your father and told him to get out of the way and then you thrust the knife into his abdomen, causing a laceration. He kept begging you to calm down and tried to placate you with offers of cigarettes and money. You really could not be reasoned with. He was trying to protect his other son from you.
13 You told your father to get out of the way, and without any warning, you then raised the knife in your right hand and slashed your father to the neck, causing a six‑centimetre laceration which began to bleed heavily.
14 You then lunged at your brother, striking him with the knife in the left side causing a laceration.
15 There was a struggle between the three of you and during that struggle your father sustained a cut to his hand as he tried to disarm you and you sustained a wound to the chin from the scissors that were being used defensively by your brother.
16 After a further struggle, you were disarmed, and you then ran downstairs.
17 Your brother rang Triple 0 requesting an ambulance to attend for your father. CCTV footage taken at 2:33pm showed you locating a pickaxe and walking off along the road before returning and leaving the axe.
18 Police attended and you were arrested and refused treatment when taken to the Royal Melbourne Hospital. You later refused to participate in a fitness assessment.
19 Your father had sustained a pretty dreadful laceration to his neck, as well as an extensive laceration to his right hand and a wound to his stomach. Your brother had a five-centimetre puncture wound to the left flank.
20 There are photographs which depict the location and depth of the major wound to your father. The knife was also seized and photographed. Some photographs were marked as part of Exhibit A, others are set out in the depositions, and there was no need for them to be separately marked.
21 It is a matter of pure luck that you did not very seriously injure your father, or worse, with a blow struck in that way to that area of the neck with that knife.
22 You have been in custody since your arrest.
23 The summary sets out the chronology of the matter before the court, and unsurprisingly, your mental health posed some challenges to the resolution of the matter.
24 So much then for my summary of the summary, that is all it is, I will sentence pursuant to the more detailed agreed statement, which, as I said, was marked as Exhibit A on the plea. There are also the various photographs showing the knife and the wounds. There are also transcripts of Triple 0 calls, including the one made prior to the major assault, as your father and your brother had sought refuge in the locked room behind the door that you then broke down.
25 This was really frightening offending by a man intent upon causing injury, and for no apparent reason at all. You really could not be reasoned with and you inflicted injury to your father, who is probably your greatest supporter.
Victim impact material
26 There is no impact material before me. Your victims have declined to make an impact statement, which of course is their right. There is a notice of additional evidence statement from your father which was seeking to withdraw the legal action against you. Obviously given the seriousness of the matter, that was quite impossible. He speaks in that statement of the challenges that you have experienced and the fact that he regards the actions as being out of character and taking place under the influence of drugs. He bears you no ill will at all and wants you back in the family. He speaks of the support on offer and the desire to see you receive appropriate mental health treatment. I do not ignore his statement, nor for that matter the character reference placed before me from your father and mother.
27 I would hardly need an impact statement to know how frightening this event was. Plainly this was a scary event. You could not be reasoned with, and you were behaving in a highly dangerous fashion. You intended to injure and you used a pretty nasty knife. The Triple 0 call transcript sets out pretty eloquently what was happening at the time. This was a frightening event. Happily, the medical treatment required was relatively brief and your father was discharged on that day. He would surely bear a physical scar as a reminder of your conduct. He would hardly need one. He will never forget what took place and nor will your brother. However, in the absence of any impact materials, I cannot conclude that there is any sizeable long term physical impacts here.
In mitigation
28 I turn to consider the plea in mitigation conducted by Mr Sturges on your behalf.
29 Your counsel had filed some written plea submissions and an addendum. Each of those was dated 22 September of this year. There were a number of reports, including a 'fitness to plead' report prepared by Dr Cross, two reports from a forensic psychiatrist, Dr Kevin Ong, as well as a very informative report from Dr Kalluru who has been managing your treatment in custody. There is also the character reference from your mother and father that I mentioned a moment ago.
30 Mr Sturges told me something of your family and personal background, including your educational, mental health and drug use history.
31 He made some brief submissions about the objective gravity of the offences as well as your prospects of rehabilitation.
32 In his customarily excellent plea in mitigation, Mr Sturges relied upon the following matters in mitigation:
· Your early guilty plea in the course of the global pandemic;
· The presence of some remorse to be implied from your guilty plea;
· The application of a number of principles from the case of Verdins[1] (Limbs 1, 2, 3 and 4)
[1]R v Verdins [2007] VSCA 102; 16 VR 269; 169 A Crim R 581 (‘Verdins')
33 He did raise the risk of deportation but he made it clear that it was not a matter greatly relied upon, and expanded upon the reasons for that.
34 He conceded the seriousness of the offences and the fact that a prison term with a non-parole period was the only option here. He had at one point suggested that the court might consider a Court Secure Treatment Order under s94A-C of the Sentencing Act, but on reflection he abandoned that submission in the running.
Prosecution
35 The prosecutor, Mr Pickering, had little need to make detailed sentencing submissions. That is very often the position when a plea has been so sensibly conducted. The fact is that your counsel had made a number of appropriate concessions, both in his written submissions and in the course of discussions with the bench. He had conceded the features of seriousness here and the elevated role that community protection played in my sentencing task. The prosecutor raised issues as to your future prospects of rehabilitation. The Crown accepted that the principles from the case of Verdins had an application here. The Director of Public Prosecutions, through Mr Pickering, was calling for a head sentence with a non-parole period but so much had been readily conceded by your own counsel. I will shortly turn to those matters raised by the respective parties. Firstly though, I will turn briefly to your background.
Background
36 Briefly, as I am prepared to act on what I have been told. There is just no utility in my setting all of that detail out in my reasons. You are 27 years of age. You were born in Kenya in June of 1996.I was told that you are not an Australian citizen as you had applied for citizenship, and had been approved for that, but then did not attend the citizenship ceremony.
37 Your parents worked in non-government organisations in international development, as I understand it.
38 You are the second oldest of four children of that marriage. Unlike many who come before the court, probably most actually, you come from a loving and supportive family. That much is very obvious. You had a happy childhood. I was told that you enjoyed football and basketball when you were growing up.
39 You attended schools in Kenya and then Cambodia. You came to Australia when you were 12 years of age and from 2009 to 2014 you attended at Ivanhoe Grammar. You completed VCE and you went onto Latrobe University in 2015 to do an economics or commerce type course. You dropped out of that course after a short while.
40 You had some jobs in the hospitality industry and then as an orderly and also in removals.
41 I was told that you have had some issues with alcohol and cannabis. According to the experts you seemingly minimise those issues.
42 You have been diagnosed as suffering from paranoid schizophrenia and you have had a number of admissions as a result of that serious mental illness. There has also been treatment in the community. You have been on remand since your arrest and you have not been at all well, with some time spent at Thomas Embling Hospital.
43 There is much information in the various reports filed before me as to the history of treatment in the community and also of inpatient admissions. There are descriptions of your markedly disturbed state leading into this offending, as well as the trials and tribulations since being received into custody. It has not been at all smooth with a pattern of refusing medication and then a worsening of your mental state leading then to movement to Thomas Embling on multiple occasions since your remand.
44 You have a very short prior criminal history comprising only one appearance and that is of no relevance to my task at all. I t simply impedes your counsel from saying that you have no prior criminal history, that is all. It is really the absence of serious past matters, which is more of note, given the seriousness of these crimes that I am dealing with. It spells out what your father describes, just how out of character this conduct was.
Guilty plea
45 I turn to the matters that have been raised on your behalf, and the first of those is your guilty plea. You have taken responsibility for your crimes by pleading guilty at what I will treat as an early enough stage. A number of the hearings were connected up with exploring your mental health predicament and even your fitness to plead. That was obviously a necessary step for any sensible legal practitioner. The matter came by way of straight hand up to this court with not guilty pleas entered. Happily, no witnesses were ever cross examined. It settled once you were judged to be fit to plead so as I have said, I will treat it as an early enough plea.
46 As a result of your early plea, the time, the cost and the effort of a trial up in this court has been avoided. Witnesses have not been required to give evidence in this court, or for that matter, the court below. All have been spared that experience by your stance in pleading guilty. It would not have been a pleasant exercise at all for your own father or one of your brothers to have to give evidence against you.
47 You have facilitated the course of justice in these various ways, and you must be rewarded for doing so.
48 Your guilty plea is worthy of extra weight for the many reasons set out in the Court of Appeal decision of Worboyes.[2] A large backlog of cases has arisen in the course of the global pandemic. The pandemic has ended but the backlog remains. Your case settled swiftly enough and there is a heightened benefit to a guilty plea in such a setting as this. I take these various matters into account in mitigation.
Remorse
[2]Worboyes v The Queen [2021] VSCA 169
49 Your counsel had pretty much concluded the plea in mitigation and had not mentioned the concept of remorse, so I quizzed him on that topic. It was not an oversight by Mr Sturges, rather an acceptance of the absence of materials suggestive of remorse. He argued though that I could find the presence of some remorse as implied from your guilty plea. I am prepared to accept that submission.
50 There was really no other material suggestive of remorse in the materials though no doubt that is a product of your mental illness. There is some reference to remorse in your parents' reference but that has to be read in conjunction with some of the other statements made to Dr Ong and the other experts which suggest otherwise.
51 I do accept your counsel’s ultimate submission and I do find the presence of some remorse here and I take that into account in you favour.
Verdins
52 Your counsel argued that Limbs 1, 2, 3 and 4 from the case of Verdins were enlivened here. The prosecution did not challenge that submission. I have read again Dr Ong’s reports, also, the report of Dr Kalluru and the report from Dr Hannah Cross. I see no need to set out slabs of the reports relied upon, as I am prepared to accept the Verdins submissions made on your behalf. If your violent and strange behaviour could be put down purely to the disinhibiting effects of drug use or alcohol abuse, there would be very little, if any, mitigation to be had. However, it is very clear from the reports that that is not the position here. You suffer from an underlying serious mental illness, which drove this offending. No doubt alcohol abuse, illegal drug use and cessation of your prescribed medication would all be implicated in deterioration of your level of functioning. It would be impossible to disentangle the effects of one from the other. But insofar as your ceasing your prescribed medication is directly implicated in your deterioration on this occasion, that was not a step taken wilfully by you. You are insightless as to your condition and the need to be medicated and the ramifications of not being medicated. It is not a feature of aggravation that you failed to take your medication.
53 It is very obvious from the materials that you were markedly unwell at the time of the offending and that this can be put down to the effects of your serious mental illness. You were in the throes of a psychotic relapse. You were disinhibited, agitated and acting impulsively. Though not required to enliven these principles, I accept the causal connection between the illness and the offending, as spoken of in paragraph 7 of the addendum submissions. Plainly there is some reduction in your moral culpability and some moderation of the weight given to specific and general deterrence. Your custodial burden is to a degree increased as well. Plainly then your condition has a bearing on the kind of sentence to be imposed and the conditions in which it should be served, though here it is conceded that a head sentence and a non-parole period is the only possible outcome. So I accept the Verdins submissions made on your behalf. As is usually the position, it is a matter of degree. Though moderated, specific and general deterrence are not eliminated here. Your counsel also recognises the ‘flip side of the coin’, that is to say the importance of community protection in a case such as this - see the addendum submissions at paragraph 16. Though he did not specifically rely upon Limb 5 relating to increased burden, he submitted that there was an overlap between the second limb and the fifth. I will give each some weight.
54 So I give some weight to limbs one through to five of the principles from Verdins.
Rehabilitation
55 I turn then to your prospects of rehabilitation. You have pleaded guilty at what I will treat as an early stage. You obviously have a supportive family. I have the Notice of Additional Evidence statement, and the character reference. I also have the attendance by Webex of your mother from overseas yesterday and your father attending back in this county from overseas for the plea. He is here again today. You no doubt always have had a supportive family though nonetheless. Your father and brother are your victims here. You have only a very short prior criminal history of no relevance at all to my task, so you do call in aid your past good behaviour. Your father makes plain how out of character this offending was.
56 You have a serious mental illness and you have difficulty accepting that or the need to take prescribed medication. That is not that unusual for someone with your illness. You have had some issues in relation to alcohol and drugs of dependence and that sort of thing casts a bit of a shadow over your future prospects. The far greater cloud though is cast by your mental illness. You have committed serious offences here but it is conduct totally out of character. There is a real strangeness to your presentation when seen by Dr Ong not that long ago. It does not inspire any great optimism.
57 You are quite insightless as to your condition and the need to take your medication. You are seemingly ambivalent as to the offending and seemingly have virtually no victim empathy at all. You cannot even seem to spell out even your present attitude to your father and brother. It is a bit of a worry. You have some difficulty understanding the seriousness of the offending. Dr Cross speaks of the very many relapses and also comments on your lack of insight. It is clear from Dr Kalluru’s report that you are still very unwell, such that if you were released, you would satisfy the requirements for involuntary admission. There were also two documents that were sent to the court, which I disclosed to the parties which confirm that view. See Exhibit B. So that is the position, despite all of the treatment that you have been getting. There are some worrying aspects to your current situation and plainly you could not go back to your parents' home owing to the level of risk spoken of in the expert reports. Your family are arranging a private rental so that treatment in the community can hopefully be accessed in the manner contemplated by Dr Kalluru. It really is impossible to predict how that will all play out. I have made Verdins allowances in this case but the serious mental illness giving rise to those allowances plainly increases your risk of offending and heightens the need for community protection, as is conceded by your counsel. It is hard not to be guarded as to your future prospects.
58 You will be deterred to some extent by the time in prison that you have already served, and also by the time that lies ahead of you.
59 I believe ultimately that you have reasonable prospects of rehabilitation, if you can abstain from illegal drugs and alcohol abuse and if you can comply with your prescribed medication and treatment regime. If you cannot do these things then those prospects will obviously dip. Your prospects of rehabilitation will tie in, to some extent, with your mental illness and the capacity to manage that successfully. That has not been easy in the past few years. That is the only reason why I am quite guarded. I do accept though that there are some things that are yet to be trialled as referred to in Dr Kalluru’s report. So it is not yet a hopeless task. I certainly do not write you off and say that you have no prospects. As I say, I think those prospects are reasonable.
COVID-19
60 You have been in custody since May of last year and it follows for that period, that the harshest of the COVID 19 restrictions upon prisoners had already been phased out. That is because things looked up significantly in March of last year prior to your even being received in prison. That was when most of the onerous restrictions were phased out. Visits, for instance, resumed in March of last year. I quizzed your counsel about this, but he was explicit in not relying upon any COVID 19 increased burden in your case.
Deportation
61 I mentioned earlier in my summary of what was being relied upon that you were going to me made an Australian citizen, there had been an approval for that process, but you then did not attend the ceremony. You therefore did not take ‘the pledge’. You are, as I understand it, as a result, not an Australian citizen, even though approval had been given. I will work on the assumption that you are still here then on a permanent residency visa and as such, you would be amenable to the automatic visa cancellation provisions set out within the Migration Act. They are triggered whenever a sentence of 12 months or more is imposed. A sentence exceeding 12 months is inevitable in this case. Your counsel raised this issue but he made it clear, even as he raised it, that he was not relying on either of the limbs spelled out in the Guden[3] line of cases. Firstly, there was no increased burden existing here as you were not experiencing or voicing any concerns about this issue at all. Secondly, there was no loss of the prospect of remaining in the country as you and your family would ‘fight tooth and nail’ to have you remain and would exhaust all legal avenues to do so, and that the outcome of that process was really impossible to predict. Mr Sturges submitted that you would have a good argument or a strong claim to remain.
[3]Guden v The Queen [2010] VSCA 196
62 I work on the theory though that your visa will be cancelled and hence there is that risk of deportation – that is just the reality. Though Mr Sturges was not suggesting any current increased burden at all arising from that fact, I do accept that it is possible that your mental health condition may improve in custody, and if it does, you may then become more awake or alert to the unpleasant risk that exists here. That would then increase your custodial burden. To some extent that is speculative, but I am prepared to factor it into my sentencing task. Whether you will ultimately be deported, and hence lose the opportunity of remaining permanently in this country, is impossible for me to know and your counsel concedes as much. He was not in any way relying on that second limb. You would have the right to ask for reconsideration of any cancellation of your visa and may succeed in that respect without going further. Depending on who makes that decision, should it go against you, you would then have the right to appeal to the AAT. How those processes would all play out is just impossible to know.
The Offences
63 I have already summarised the offending. This was serious offending and your counsel addressed the reasons for that in his submissions at paragraphs 3 and 4 of the major set of written submissions. You assaulted your brother and father in their own home and then escalated the event by obtaining and then using a knife. What a knife to wield. The knife was a serious one and it was wielded very dangerously indeed. The slash to your father’s neck could so easily have seriously injured or killed him. It is just impossible to judge the outcome of that sort of strike to a nicety. The use of a bladed weapon raises the stakes very significantly. Your victims were unarmed. They were in no way hostile to you. They were trying to placate you and they were vulnerable in that setting. Your father was trying to shield or protect your younger brother.
64 You intended to cause injury, and in relation to your father the intended injury was one caused by the blade to the regions targeted. You targeted the neck and the abdomen. This was serious stuff indeed. The attack on your brother was less serious. Plainly, you were not in an optimum state. It was spontaneous and disinhibited offending by someone labouring under the throes of a psychosis. Plainly there was a marked level of disorder arising from your mental illness. I have already said there is some reduction in your moral culpability.
65 Charge 2 relating to your father is a serious enough example of the crime of intentionally causing injury. Charge 1 is less serious but still serious enough given the setting and mechanism. The serious nature of this offending is conceded by Mr Sturges.
Purposes
66 I have to consider a number of purposes of sentencing. One of those purposes is your rehabilitation. I must pay regard to your prospects of rehabilitation. As I have said, I think they are reasonable. Plainly they will to some extent tie in with the treatment of your mental illness.
67 I am required to punish you but I have to do that justly and proportionately.
68 I must also denounce your conduct. This was dangerous violence. I must denounce it.
69 I must give some weight to specific deterrence in this case. Specific deterrence relates to the need to deter you from offending in the future. It would be far more important if you had relevant criminal history before the courts. You do not. There is also some reduction owing to my Verdins findings. Still, I must seek to deter you.
70 I must also adequately reflect general deterrence. General deterrence relates to the need to deter other offenders. I must seek to deter others from offending in the way that you did. The court must send a message that conduct such as yours will not be tolerated and will be met with punishment. You are, however, not the appropriate vehicle for the full weight to be given to the principle of general deterrence. There is some Verdins driven moderation of this purpose of sentencing, but it is not eliminated.
71 I must also give adequate weight to community protection. Community protection is of real importance here given the nature and the seriousness of this offending. Plainly it would be given more weight if you had relevant past history or if you had, for instance, a long track record of disobedience to court orders or less realistic prospects of rehabilitation. But that is not the position. I have already mentioned that your mental illness increases your risk. So much was conceded. I must adequately reflect community protection in my sentencing task. That is surely obvious enough. What I must not do, though, in the name of community protection, is impose a disproportionate sentence. That is prohibited.
72 I must have regard to the maximum penalties as well as to the impact of your crimes.
73 I have to also pay regard to current sentencing practices.
74 Current sentencing practices are not a single controlling factor.
75 I have looked at the online statistics for the crime of intentionally causing injury as well as the formal snapshot for that crime, Snapshot No. 265 of 2021 published by the Sentencing Advisory Council of Victoria. I have scarcely mentioned the criminal damage charge in my reasons but it pales almost into insignificance when measured up against the intentionally causing injury charges, especially Charge 2, which your counsel submitted was a serious example of the crime of intentionally causing injury.
76 Statistics have inherent limitations. All of the many details which would explain the reasons for a particular sentence are omitted from the statistical data. They are just numbers. In any event, sentencing is not a mathematical or statistical task.
77 I have looked at some instances of sentences previously passed for the crime of intentionally causing injury as set out in the Judicial College of Victoria case summaries.
78 At the end of the day, though, no amount of looking at other cases or at the statistics would ever provide the answer to my sentencing task. There is no such thing as an identical offence or offender, nor is there such a thing as one correct sentence.
79 What I have to do is exercise my sentencing discretion in your case. I know the details of your crimes. I know your personal circumstances. I am awake to the matters both in mitigation and in aggravation in your case.
Totality
80 I take into account the principle of totality of sentence. I have engaged in a 'last look' at the sentences imposed by the court and the total effect of them in endeavouring to guard against the imposition of a crushing sentence upon you and to ensure that the overall effect is commensurate with your overall criminality. This was a tightly grouped set of offences. They were committed in a brief single episode by a man acting in the course of serious mental health deterioration. There must be a decent level of concurrency in this setting to recognise these factors. However, I have multiple victims and there must be adequate cumulation between the sentences imposed on Charges 1 and 2 to recognise that fact. They are not ‘a job lot’.
81 I also must give some recognition to the attitude of your mother and father, as expressed in the Notice of Additional Evidence statement and their character reference. But the forgiveness of a victim cannot be allowed to dominate my task. Your counsel also suggested that your brother was perhaps less favourably disposed towards you.
82 Prison is a disposition of last resort. Mr Sturges conceded that there was no other option open here given the seriousness of the offending. It is obvious that I must pass prison sentences and then make orders for cumulation and that I will be required by law to fix a non-parole period.
83 I must not speculate as to whether or not you will be paroled by the Adult Parole Board. In fact, I am not even allowed to consider that issue. The Adult Parole Board will determine whether or not you will be paroled. It has nothing to do with me at all.
Disposal order
84 There is a disposal order in this case which is not opposed.
85 Application is made pursuant to the provisions of s78 of the Confiscations Act for the forfeiture to the State of the property referred to in the schedule. As I say, the order is not opposed. I am satisfied that the pre-conditions to the making of the order are made out here and I order pursuant to the relevant provisions of the Confiscations Act the forfeiture to the State of the property referred to in the schedule. I direct that it be managed and handled in the manner contemplated by that signed order.
Sentence
86 I will have you stand up now please, Mr Tewoldeberhan. If you would stand up please.
87 On Charge 1, that is the intentionally causing injury to your brother, you are convicted and sentenced to 18 months' imprisonment.
88 On Charge 2, the intentionally causing injury charge relating to your father, you are convicted and sentenced to two years nine months' imprisonment. That is the base sentence.
89 On Charge 3, the criminal damage, you are convicted and sentenced to seven days' imprisonment
Cumulation
90 I direct that six months of the sentence imposed on Charge 1 is to be served cumulatively upon the base sentence. The sentence imposed upon the criminal damage charge will be served concurrently with all other sentences.
Total Effective Sentence
91 These orders produce a total effective sentence of 39 months or three years three months' imprisonment
Non-parole period
92 I fix a period of 21 months during which you will not be eligible for release on parole.
Section 18 pre-sentence detention
93 You have already served 512 days of this sentence by way of pre-sentence detention and that s18 declaration is entered into the records of the court.
Section 6AAA.
94 I have taken into account your guilty plea and I have reduced your sentence accordingly. If you had pleaded not guilty and been found guilty of these offences following a trial before a jury, I would have convicted and sentenced you to five years' imprisonment. I would have fixed a non‑parole period of three-and-a-half years in that setting.
95 Just have a seat then for a moment, I will see if there is anything else that I need to attend to. Have a seat. Anything else from your perspective, Mr Andrews?
96 MR ANDREWS: No, Your Honour.
97 HIS HONOUR: Mr Sturges.
98 MR STURGES: No, Your Honour, thank you.
99 HIS HONOUR: Will you go down and see your client today or - - -
100 MR STURGES: I will, Your Honour. I've got a plea before His Honour Judge Wraight at 10.30 but I'll see my client over the luncheon adjournment.
101 HIS HONOUR: I'll revise these reasons, as is my custom, as soon as I get them back from VGRS. I generally do it on the day or the next day so they will be made available to the parties in due course. You can remain seated, Mr Tewoldeberhan. Mr Sturges will come downstairs and see you at some stage today to discuss what's happened here and your rights in relation to the sentence. He's got another matter in another court so he'll see you at some stage today. If he happened to miss you, if for some reason you happen to be moved before he gets to see you, no doubt he will arrange a conference to speak to you out at prison. So that completes the matter. I've got some appeals listed at 10.30 so Mr Tewoldeberhan can now be removed. Thank you. I will stand down.
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