R v Abebe
[2000] VSC 562
•13 December 2000
| SUPREME COURT OF VICTORIA | |
| CRIMINAL DIVISION | Not Restricted |
No. 1580 of 1997
| THE QUEEN |
| v. |
| TEKLEMARIAM ABEBE |
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JUDGE: | VINCENT, J. | |
WHERE HELD: | MELBOURNE | |
DATE OF SENTENCE: | 13 DECEMBER 2000 | |
MEDIUM NEUTRAL CITATION: | [2000] VSC 562 | |
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CATCHWORDS: Guilty Plea to Manslaughter - Provocation.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr. J. McArdle QC | Office of Public Prosecutions |
| For the Accused | Ms. E. Gaynor | G.R. Bryant & Associates |
HIS HONOUR:
Teklemariam Abebe, you have pleaded guilty to the manslaughter on 2 January 1997 at Footscray in the State of Victoria of the man named Kassa Wube. The prosecution has accepted that plea, indicating that, in the circumstances, the possibility that you acted under provocation, as that term is understood by the law, could not be excluded beyond reasonable doubt. It is on that foundation the sentence must be based.
You have no prior criminal history in this country, and it appears to be reasonably clear that you had none in any of the countries in which you resided before you came here in 1993. Nothing has emerged in the material before the Court which suggests that you have not hitherto conducted your life as a person of good character. This background must, of course, be taken into account in your favour.
The circumstances surrounding the commission of your offence need only be set out relatively briefly at this stage. As earlier mentioned, you came to Australia in 1993. Shortly afterwards, you met a woman named Gidey Hadgu, who had migrated here five years before with her three children. Gidey Hadgu and you were married in 1994. However, the marriage encountered difficulties after a relatively short period of time due to the development of a relationship between your wife and the deceased, Kassa Wube, who became a regular visitor to your home. On a number of occasions, on returning to your house, you found him in the kitchen with your wife, talking and drinking coffee. On others, your wife would be absent from the home at night, without any explanation of her whereabouts being provided by her.
I have been informed that in the locally resident Ethiopian community such conduct would not be regarded as acceptable. Whilst I am reasonably confident that it would be likely to create tensions within most communities with which I am familiar, I think that I would be justified in accepting that it would be particularly upsetting to a person in your situation. You come, I have been informed in evidence from Dr Dorward from Latrobe University, from a society with strong patriarchal values, and that in Australia you are a member of a small, expatriate community that is concerned to maintain its cultural identity and values. This is a well recognised response of persons and groups who, for one reason or another, are forced to live away from their homeland. I would also anticipate that in such a small group it is likely that the members would be aware of much that was happening within it and you would feel embarrassed by the possibility that there may be widespread knowledge of the issues that had arisen in your family.
Not surprisingly in that situation, and in spite of your express concerns about the continued presence of the deceased, the relationship between your wife and yourself deteriorated until you eventually separated in mid 1996 and you went to Sydney. However, contact between the two of you did not cease, and it appears that you were persuaded to return to Melbourne after about two months.
You resided with your wife, although there is dispute as to the nature of your relationship at that stage, and you were very actively involved with her in the setting up and operation of an African restaurant in Footscray. I accept that you had developed an interest in a project of this kind as a consequence of the many years in which you had worked in bars and food outlets in Japan and Canada, and that you were quite eager to establish your own business. I also consider that it is extremely likely that you hoped for, and anticipated, that reconciliation could be achieved between your wife and yourself with the deceased moving out of the picture.
Gidey Hadgu has provided a somewhat different image of the relationship between the two of you at that time, stating, in effect, that it was that of a brother and sister who were engaged in a joint business activity. Based upon my view of the unreliability of her evidence in some other respects, and the motive which she must be regarded as possessing to present herself more favourably than perhaps full disclosure of the facts probably would suggest was appropriate, I am of the view that you were given some encouragement to believe that your marriage could be maintained.
It was against this background that, on the morning of 2 January 1997, you arrived at the restaurant with some meat that you had purchased for the day's trading. Different versions have been provided concerning what took place and it is not possible to state with confidence precisely what transpired. However, I consider that it is reasonable to state that you became very upset and angry on again finding the deceased sitting at the kitchen table, and that there was a confrontation of some kind involving the three of you. The prosecution has, in view of the state of the evidence available at this stage, accepted that it could not properly invite the jury to conclude beyond reasonable doubt that you did not lose control of yourself as a consequence of the provocative acts of your wife and the deceased at that time and kill him in circumstances amounting to provocation under the law.
What is clear is that you stabbed the deceased three times in the chest, thereby causing his death. You have asserted in evidence in an earlier trial, to which I will return, that you asked your wife why the deceased was sitting in the kitchen, and that she responded, "Why should you care when you are sitting there, because he is my boyfriend, why should you care?" you have also asserted that she stated that she intended to live with him as man and wife. As this conversation was taking place, Kassa Wube, you claim, looked at you in an arrogant and condescending fashion, and at this point, losing control, you then picked up a knife and stabbed him repeatedly.
In the circumstances, I consider that it is on this factual basis, which is the most favourable to you, that I should act when considering the sentence to be imposed upon you.
The crime of manslaughter can arise in a wide variety of circumstances, and there have been a number of formulations developed to encompass them. Whichever is appropriate in a given case, they all involve the notion of the unlawful destruction of human life. That is the irrevocable reality with which we are presented here. A sentencing judge, when dealing with a situation such as this, must reflect the repudiation of the community of the resort to violence to resolve personal issues. This is a matter of particular significance in situations where a relationship breakdown has been involved. There has, after all, been a whole system of law and an entire court structure put in place in our society for the precise purpose of dealing with such problems. Regrettably, judges in the Trial Division of this Court are regularly confronted with perpetrators, almost always male, who, unable to come to terms with relationship breakdown or rejection, give vent to their anger and frustration, often in circumstances of some loss of self-control, and commit the irrevocable act of taking the life of another, frequently their former partners, sometimes their children and sometimes those associated with them.
Although the law, conceding the reality of human frailty in situations such as that presently under consideration, treats the killing as manslaughter, rather than murder, it does not follow, nor should it, that the unlawful and deliberate taking of a human life should not be viewed as a matter of the utmost seriousness.
I have, in considering this matter, read a statement made under a Power of Attorney, which I accept, which sets out the understandable reaction of the members of the family of the deceased to his death. Although this statement does not come before the court in what might be described as the proper form, no objection has been taken to its presentation, and I consider that it is appropriate to receive it. There is, sadly, nothing unfamiliar in the deep sense of loss and anguish expressed and which is so often associated with such crimes.
The courts must, through the sentences that they impose for conduct of this kind, not only reflect a recognition of the significance of the destruction of human life and make it perfectly clear that in this society the employment of an unlawful violence will not be tolerated, but must also endeavour to deter those who may be so minded from engaging in the kind of behaviour in which you engaged.
Nevertheless, it is necessary to have regard to a variety of other matters when attempting to arrive at the proper sentence to be imposed. Each case and each offender must be considered in the light cast by all of the circumstances relevant to the specific situation and the person before the court.
You are now aged 50 years, having been born one of five children in your family, which lived in Addis Ababa in Ethiopia. You left school at the age of 16 years, and engaged in employment as a taxi driver and as a welder. It was through this latter activity that you came into contact with a Japanese artist who was resident in Ethiopia at the time. It was recognised that you possessed artistic talent and eventually you were afforded the opportunity to travel to Japan to study. You had been there for some time when there was a change of government in your home country, and you found yourself in an extremely difficult situation. For very good reasons, you regarded yourself, and were later accepted to be, a refugee.
Although you were culturally and socially isolated in Japan, you were, for practical purposes, unable to leave, and you remained there for approximately 14 years before you were able to migrate to Canada and then later to Australia. This bland description of your history does nothing to convey the sense of loneliness and isolation that I have no doubt you experienced for many years prior to settling in Melbourne and meeting your wife. Nor does it do more than suggest the many difficulties which you have encountered as you endeavoured to establish a home and lifestyle and earn a living for yourself over the years.
It is hardly surprising, when regard is had to that background, that you considered the stability of your relationship with Gidey Hadgu as being of profound importance. Your emotional response to the presence and actions of the deceased at the restaurant at the time of the killing and, consequently, your level of moral culpability, must also be viewed in that context.
I should add that what occurred at that time appears to have been quite out of character for you. There is nothing in the material which conveys any impression that you may be a person who is predisposed to the use of violence, or that you would ever again be likely to offend against the law. Reference needs to be made at this point to the impressive evidence given on your behalf by Father Zinnecker, who came from Japan to offer his support for you, and the personal references tendered on your behalf.
Accordingly, I do not consider that it is necessary in your case to take into account the need to protect the public or to deter you from engagement in future criminal activity. On the other hand, I consider that your prospects of rehabilitation must be regarded as good, and that that consideration should assume substantial significance in your case.
It should also be mentioned that you have now been in custody for almost four years before there has been a final resolution in your case. Initially, you were charged with murder, and you were eventually presented and convicted of that crime. However, by reason of the misdirection of the jury by the trial judge with respect to the issue of provocation, the verdict was set aside by the Court of Appeal. Through no fault of your own, you have been subjected to undue protraction of the legal processes and the stresses associated with them. It is, in my opinion, reasonable to take that consideration into account in your favour.
I am familiar with, and have had regard to the range of sentences handed down by judges of this Court over recent years in cases where the crime of murder has been reduced to manslaughter through provocation, bearing in mind that only general guidance can be gained from them.
Ultimately, I have arrived at the view that the proper sentence in your case is one of imprisonment for a period of eight years. I fix a non-parole period of six years. I declare that the period of 1,445 days that you have undergone as pre-sentence detention be reckoned as having been served under the sentence hereby imposed. I direct that this declaration and its details be entered into the records of the court.
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