R v Abdi - [2020] VSC 225

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2019 0034/35

THE QUEEN
v
DAWUUD ABDI SALAH ABUKAR	Accused

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JUDGE:	TINNEY J
WHERE HELD:	Melbourne
DATES OF HEARING:	3, 4 February and 16, 22 April 2020
DATE OF SENTENCE:	30 April 2020
CASE MAY BE CITED AS:	R v Abdi & Anor
MEDIUM NEUTRAL CITATION:	[2020] VSC 225

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CRIMINAL LAW - Sentence – Intentionally causing serious injury and affray – Contested trial – Attack followed earlier attack by victim and his brother upon motor vehicle in which offenders were passengers – Provocation – Attack upon primary victim and brother with weapons – Motivation for offending was retribution rather than excessive self-defence - Serious brain injury sustained by primary victim – Difficult personal backgrounds and limited prior convictions – Relative youth and prospects of rehabilitation – COVID-19 implications – Impact on victims – Some cumulation necessary – Renzella time – Parity between offenders – Question of parity as between offenders and another offender Sharif – Just punishment – Denunciation – General deterrence – Specific deterrence – Rehabilitation – Total effective sentence of 6 years 9 months’ imprisonment with a non-parole period of 5 years.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms D Karamicov	Ms A Hogan, Solicitor for Public Prosecutions
For the Accused Dawuud Abdi	Mr C Pearson	Tony Hannebery Lawyers
For the Accused Salah Abukar	Mr S Kenny	Emma Turnbull Lawyers

HIS HONOUR:

Introduction

Dawuud Abdi and Salah Abukar, you have been found guilty by a jury of intentionally causing serious injury (‘ICSI’) to Sean Duncanson and affray. The events which led to the charges of which you have been found guilty occurred in Castley Crescent, Braybrook, at about 9.30 pm on Saturday 9 December 2017.

The maximum penalty for ICSI is imprisonment for 20 years. The maximum penalty for affray is imprisonment for five years.

ICSI is a category 2 offence under s 3(1) of the Sentencing Act 1991 (‘the Act’). This means that pursuant to s 5(2H) of the Act, in sentencing you I am required to impose a sentence of imprisonment upon you in the absence of the application of one of the exceptions contained in parts (a) to (e) of that subsection. It has not been submitted on behalf of either of you that I should do anything other than impose a term of imprisonment and set a non-parole period.

Background

The events which occurred in Castley Crescent that night were preceded by an earlier incident in the front yard of a property at 237 Ballarat Road, Braybrook in which the brother of Sean Duncanson, Paul Duncanson, was accosted by a group of men including the two of you. You and others had arrived at that location in a Hyundai motor vehicle driven by Ahmed Sharif (‘Sharif’). Paul Duncanson was struck to the face by one or more of the men, and was then surrounded by them in a threatening manner, as witnessed by the householder Sally Roach.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Abdi

Details

AGLC: R v Abdi [2020] VSC 225
Case: [2020] VSC 225
Decision Date: 30 April 2020

CaseChat Overview and Summary

In the case of R v Abdi, the defendant was convicted of intentionally causing serious injury and engaging in affray, following a contested trial. The incident arose from a series of retaliatory attacks that began when the victim and his brother assaulted the motor vehicle in which the offenders were passengers. The legal issues before the court involved determining the appropriate sentence, considering the context of the crime, the extent of the injuries inflicted, the backgrounds of the offenders, and the implications of the COVID-19 pandemic. The court needed to balance the principles of punishment, denunciation, deterrence, and rehabilitation, while also ensuring parity in sentencing between the offenders and with other relevant cases.

The court deliberated on the nature of the offending, acknowledging the serious brain injury sustained by the primary victim, the retaliatory motive behind the attack, and the relative youth and limited criminal history of the offenders. It also took into account the difficult personal backgrounds of the offenders and the potential for rehabilitation. The court emphasised the importance of considering the COVID-19 implications, particularly in relation to the impact on the victims and the broader community. The sentencing process required careful consideration of the need for some cumulation of sentences, the concept of Renzella time, and the achievement of parity between the offenders as well as with another offender, Sharif. The court ultimately determined that a total effective sentence of 6 years and 9 months' imprisonment, with a non-parole period of 5 years, was appropriate.

The court’s reasoning was grounded in a comprehensive analysis of the legal principles and the specific circumstances of the case. It concluded that the sentence needed to appropriately reflect the gravity of the offending, while also providing an opportunity for the offenders to address their behaviour and rehabilitate. The sentence aimed to serve the purposes of denunciation, general and specific deterrence, and rehabilitation. The court’s final orders reflect a balanced approach to sentencing, taking into account the nature and circumstances of the offending, the principles of justice, and the protection of the community.

Orders