R v A O
[2009] VSC 13
•28 January 2009
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1625 of 2007
| THE QUEEN |
| v |
| AO |
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JUDGE: | COGHLAN J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 November 2008 | |
DATE OF SENTENCE: | 28 January 2009 | |
CASE MAY BE CITED AS: | R v AO | |
MEDIUM NEUTRAL CITATION: | [2009] VSC 13 | |
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CRIMINAL LAW – Plea – Manslaughter and armed robbery – Prisoner 16 years old at time of offence – Originally charged with murder – Prisoner born in Ethiopia, migrated to Australia at 12 years of age – Grew up in environment of poverty and civil unrest – Under influence of alcohol at time of offending – Prisoner’s youth important principle in determining sentence – consideration of prisoner serving sentence in a Youth Justice Centre pursuant to s 471 of the Children, Youth and Families Act 2005 – Sentenced to a total effective sentence of eight years with a minimum non-parole period of four years.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr C.G. Hillman SC | Office of Public Prosecutions |
| For the Accused | Mr G. Mulally | Andrew George Solicitors |
HIS HONOUR:
AO, on 2 September 2008 you pleaded guilty before me to one count of the manslaughter of Leong Lim and one count of armed robbery. You had originally been charged with murder, but the Crown accepted your plea. The resolution of the matter in that way was merciful, but in all the circumstances, particularly those relating to your background and age at the time of the offending, that resolution was appropriate.
The events which bring you here can be stated briefly. On 3 March 2007 you killed Leong Lim by hitting him on the head with what was probably a “Passion Pop” bottle. You then stole Mr Lim’s wallet, which contained some money, and his mobile phone. You were then 16 years of age. You were under the influence of alcohol. It is accepted that you did not intend to kill Mr Lim or cause him really serious injury, rather that you formed the intent to attack him and cause him some injury which a reasonable person in your position would have appreciated was likely to cause at least serious injury. It follows also that the Crown accepts that you had not formed the intention to steal at the time you first attacked Mr Lim and caused his fatal injuries, but that, having attacked him and disabled him, you decided to steal what he had with him. Otherwise, the question of murder pursuant to s 3A of the Crimes Act 1958 would have arisen.
On the night of 2 March 2007, Mr Lim had gone to Sandown Racecourse Tabaret. He left those premises shortly after midnight. By about 12.30 a.m. on 3 March 2007 he had reached the intersection of Springvale Road and Bailey Court, Springvale. It seems logical to assume that Mr Lim was on his way home when you attacked him. Mr Lim, who was a Malaysian citizen, was living alone in Australia. He was living in the Springvale area and was employed picking snow peas on Phillip Island. It is not altogether clear, but it appears that Mr Lim was in Australia to get money to support his family. He was sending monthly payments back to his wife and four children. The children were, at the time of the plea, aged 16 almost 17, 13 almost 14, 12 and 7.
I received a Victim Impact Statement from the deceased’s wife, Lue Moi Yen. As a result of the death of her husband, her life has become more difficult in almost all ways, and the children have been teased about their father’s death. The consequences for the family are very severe. The irony involved in the juxtaposition between yourself and your victim cannot be avoided.
At about 9.00 p.m. that night you met some friends near the Noble Park Railway Station. You and some of your friends were drinking an alcoholic drink called “Passion Pop”. One of your group had purchased it at a nearby bottle shop.
Your group went to Dandenong by train, where you met other friends. A party which your group was going to attend did not eventuate and the group returned to Springvale Station at about 11.00 p.m.
You and some of your friends walked up to the Ericksen Gardens in Springvale Road, Springvale. The group stayed there for about an hour drinking and talking. Your friends left you there about midnight. You still had a bottle of “Passion Pop”.
You walked from the Gardens south along Springvale Road. At the intersection with Bailey Court you encountered the deceased. It was then about 12.30 a.m. What happened was observed by the witness, Peter Arvanitis, who lived on the other side of Springvale Road. He said in his statement to the police:
“I’m not sure of the exact time, maybe about 12.30 a.m. I went outside to my van that was parked in my driveway, to get a pen. I heard a noise from across the road. I saw a guy standing over something hitting into the ground with a long metal pipe. I knew it was metal because I could hear the noise as it hit the ground.
…
The object he was hitting the victim with was about 60cm and thick, probably 5cm by 5cm in width. I’m pretty sure it was a square tube. It was shiny and the sound it made when it hit the ground was like metal. I think he put the pipe in his bag when he walked away. …”
The “metal pipe” is much more likely to be the “Passion Pop” bottle.
From that description, it is obvious that your attack was a vicious and sustained one. You were seen bending over the body and shaking it. It is probably in that process that you robbed the deceased.
On autopsy, Mr Lim was found to have suffered a severe head injury which caused his death. In particular, there was a large transverse skull fracture.
About a week later, you admitted to your friend, Asdirsage Abdullahi, that you followed the deceased. You told him that you had started hitting the deceased and had killed him. You said you had taken the wallet and phone. The wallet contained about $300.
Mr Lim’s mobile phone was located at your premises on 11 May 2007.
On 21 May 2007 when interviewed, you made no admissions. You were arrested on 22 May 2007 and have been in custody ever since.
The witness Asdirsage Abdullahi was one of the friends who was with you on the night of the killing of Mr Lim and he described you as being “tipsy”.
Although you have no prior convictions, you were before the Dandenong Children’s Court on 24 October 2008 charged with intentionally causing serious injury, recklessly causing injury and unlawful assault. A fine of $500 was imposed upon you. Those offences had occurred on 9 March 2007, i.e., a few days after the killing of Mr Lim. The circumstances involved you inflicting injuries on an innocent victim by infliction of gratuitous violence with your head and hands.
That conviction plays little part in my consideration of these matters. It is a further indication of the state you had descended into at about the time of this offending.
Manslaughter carries a maximum term of imprisonment of 20 years, and armed robbery, 25 years. Although armed robbery carries a longer maximum term of imprisonment, the manslaughter in these circumstances is taken as the principal offence and the much more serious one.
On the plea, the following exhibits were tendered:
(i) Progress Report prepared for the Adolescent Forensic Health Service prepared by Mr Dean Janover, psychologist.
(ii) Psychological Assessment prepared by Mr Patrick Newton, psychologist.
(iii) 14 certificates relating to programmes undertaken by you since you have been in custody.
Your sister gave evidence on your behalf on the plea and you are fortunate to have her support. She was able to confirm a number of matters about your background which emerged in the above reports.
It should be noted that Mr Janover’s report was not prepared for the purpose of being used on the plea, but rather to assess your progress psychologically since you had referred yourself for assistance in October 2007.
The first referral related to the loss of a friend who had been murdered. In a later self-referral in April 2008, you sought assistance more generally relating to what had happened to you in a much broader way, particularly the “past traumas” in your life.
Mr Janover then commenced weekly counselling in which you were taken through the important events in your life and you commenced to write an account of your life.
Mr Janover reported that you started to gain perspective and insight. Most importantly, you became, to use the words of Mr Janover, more optimistic, often realising that you can be the agent of your own change, rather than a victim of circumstances.
Mr Janover has recommended that you continue in counselling.
It is important, before coming to the conclusions reached by Mr Newton, to set out your background in some detail.
You were born on 5 July 1980. You are now 18½ years old. You have been in custody for something over 19 months. You were 16 at the time of the commission of these offences.
You were born in Ethiopia. You and your sister are the only children of your mother and father. Your father has had other wives and your mother another husband. You have a total of at least 14 half brothers and sisters. Your father left the family when you were an infant and came to Australia. You had nothing to do with him until you came to Australia when you were about 12.
After your father left, your mother took you and your sister to live with your mother’s parents. You remained there until you were about four because your mother had to move to another village for work. Your grandfather was a positive figure, but it goes without saying that life was difficult without either of your parents. There was great instability in the area.
The region in which you were living was a kind of “war zone”, with fighting between Ethiopian and Somali troops and various local rebel groups. You witnessed at least one death. When you were about five, your grandfather was killed in a skirmish between Ethiopian troops and local militia. That had a devastating effect on the family. Without your grandfather as the head of the family, your family lost most, if not all, of its goods, including livestock.
You and your family lived from hand to mouth. Fighting continued around you and you were involved in it as a matter of survival. You told Mr Newton that you had learnt “to do whatever [he] had to to survive …”.
A short time later, your mother divorced your father and remarried. You found life under your stepfather difficult and the family moved frequently in search of work and food. When you were about seven, you left to join your sister, who had gone to live with an uncle a short time before. There were 13 people living in the house in great poverty. Some years later, your father sponsored you and your sister to come to Australia.
As I have already said, you came to Australia when you were 12 and you have permanent residence status. Your long-term future in that regard is not entirely clear.
When you came to Australia, you had difficulty in adapting to the way of life and, in particular, to the discipline imposed by your father, who was strict. You had come from a position of almost complete autonomy to one of great control. In 2004 you left home.
It will surprise no-one to learn that as a result of what I have already said, you had no education in Ethiopia. When you arrived in Australia, you did not speak English and you were given a year of training in English before starting school in Year 7. That probably had to do with your chronological age, rather than your level of education. You found school difficult and did not progress very well. You had some behavioural problems at school. You joined in with a group of other young African men and it was about then, when you were about 15, that you commenced the consumption of alcohol. Use of alcohol caused problems both at home and at school, particularly at home. Mr Newton found, after brief testing, that your English literacy remains at a remedial level.
Although you appear to have stayed at school until the end of Year 10, it is not clear whether that is a result of academic achievement or mere attrition.
Even though you have had a difficult life, you do not suffer from serious psychological problems. You do have difficulties in, as Mr Newton expressed it, “the interpersonal and social domains”. That situation is a direct result of your early life. You continue to be counselled in those areas and your personality development has been impeded. You have a tendency to see things in competitive terms, having lived through a period where only the strong were to survive. In that context, you do not trust others and suspect them of exploitation. It followed that you developed a personality which did not lead you to readily adapt to the authority of others, particularly your father and your teachers.
On the other hand, you had also developed a sense of powerlessness and alienation. You addressed those feelings in part by your association with other young African men who had had experiences similar to your own. That association did not help and increased your tendency for aggressive behaviour.
That left you in a position of having the potential to develop a severe personality disorder and you were developing an anger management problem. As already noted, you have been receiving counselling and assistance from Mr Janover, which it is hoped will continue. There appears to be no reason why it should not. You appear keen to take part in anger management training.
Alcohol had become a problem for you by the time of these events and from the age of 15 you had been drinking regularly. In particular, you had begun to indulge in binge drinking with your friends on Friday and Saturday nights. You increased the effect of alcohol by drinking rapidly and were consuming between four and six bottles of “Passion Pop” at a sitting. It is your recollection that you had consumed about four bottles of “Passion Pop” on the night you committed these offences.
You had had sufficient experience with alcohol to know of its effects upon you. Because of that, I do not regard it as being in any way mitigatory. I am prepared to accept that you might well not have committed these offences unless under the influence of alcohol and you now have some insight into the effect of alcohol on you and have formed a commitment to abstain once you are released. I wish you well in that resolve.
It is worth observing that your use of alcohol was part of your response to what had happened in your life. Drinking of this kind is more a product of our culture than the culture and background from which you come.
It is imperative that our community takes a stand. It needs to become clear to our young men and women that enjoyment of life and position in society is not to be measured or driven by ever increasing consumption of alcohol.
At the end of your plea I asked for a progress report from the Department of Human Services about how you are progressing in the Youth Justice Centre. I received a report from Mr David Cameron, your Unit Manager at Melbourne Youth Justice Centre, dated 5 December 2008. That report is very favourable. You started off your time in custody badly, but have come to accept that although you are deprived of your liberty, you might be able to get something out of it and you have applied yourself accordingly.
The certificates tendered on your plea show that you have applied yourself well.
Your crimes are very serious ones and, were it not for your youth, you would be looking at a very long term of imprisonment. I say that because if you were an adult, I doubt that the Crown would have accepted your plea. I am obliged, pursuant to s 6AAA of the Sentencing Act 1991, to state the sentence I would have imposed were it not for your plea of guilty. In cases such as the present case, that proposition is almost, if not actually, impossible. I have already indicated that the plea which was accepted by the Crown is to your benefit and substantially so.[1] If you had not pleaded guilty, the case would have proceeded as a murder trial. The other matter here to be considered is that the fact that you were probably intoxicated on the night in question has already been taken into account in allowing you to make your plea to manslaughter. In these somewhat unusual circumstances I would have sentenced you to a head sentence of nine years with a non-parole period of six years. It would also, I suspect, have been necessary for you to serve that sentence in an adult prison.
[1]See R v Talj [2003] VSCA87; R v Lennon [2001] VSCA 233.
It is a well recognised principle of sentencing that when sentencing the young, rehabilitation is often the principal purpose of sentencing.[2] When dealing with more serious violent offences, whilst that is probably not so, the principle is still very important.[3]
[2]See R v Mills [1998] VR 235.
[3]See R v Lawrence (2004) 10 VR 126.
In your case, I have fixed a sentence of moderate severity. You must be punished, and principles of both specific and general deterrence must be applied at least to some extent.
I have taken into account your youth and your background. I accept that you are remorseful. I regard you as having good prospects of rehabilitation. You are still quite young, and I had come to the view at the plea that it was likely that I would be obliged to fix a sentence greater than the maximum which would ordinarily be served at a Youth Justice Centre, i.e. three years. Your counsel, Mr Mullaly, accepted that likely outcome. On the other hand, he urged me to make a recommendation to the Adult Parole Board that you be transferred to a Youth Justice Centre pursuant to the provisions of s 471 of the Children, Youth and Families Act 2005. I indicated at the plea that I would obtain suitable reports and put in train the possibility of transfer to a Youth Justice Centre as the place at which you could serve at least a major part of your sentence.
The next step in the process was that a report had to be prepared by the Department of Human Services for consideration by the Adult Parole Board. That report has been provided, but that report still has to be considered by the Adult Parole Board. I am informed that your case will be considered by the Adult Parole Board today.
The question of whether you will be transferred is a matter solely for the Adult Parole Board. You must understand that if the transfer is made, your continued stay in the Youth Justice Centre is dependent entirely on you. If you behave yourself and continue to improve, you will stay. If you misbehave, it is likely that you will be transferred into the adult system. That is neither in your interest or in the interest of the community.
I have decided to fix a somewhat longer period on parole than I would have ordinarily, so that when you are eventually released into the community, you will have ongoing support which is necessary. I have not fixed this sentence with any regard to what action might be taken by the Adult Parole Board.
On Count 1, manslaughter, I sentence you to be imprisoned for seven years.
On Count 2, armed robbery, I sentence you to be imprisoned for three years.
I order that one year of the sentence on Count 2 be served cumulatively upon the sentence imposed on Count 1. That is a total effective sentence of eight years. I fix a period of four years before you will be eligible for parole.
I declare that 617 days be reckoned as served and I direct that there be noted in the records of the Court the fact that this declaration has been made and its details.
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