R v Birkneh

[2023] NSWDC 147

District Court

New South Wales

Medium Neutral Citation:

R v Birkneh [2023] NSWDC 147

Hearing dates:

16 March 2023 and 8 May 2023

Date of orders:

08 May 2023

Decision date:

08 May 2023

Jurisdiction:

Criminal

Before:

Scotting DCJ

Decision:

1   Ketema Birkneh is convicted.

2   I impose a term of imprisonment of 5 years and 3 months with a non-parole period of 3 years and 3 months to date from 18 September 2021. The non-parole period will expire on 17 December 2024 and the head sentence will expire on 17 December 2026.

3   The offender will become eligible to be released on parole on 17 December 2024.

4   I will extend the duration of the order made in the Local Court on 21 April 2022 so that the apprehended domestic violence order expires on 17 December 2026.

Catchwords:

CRIME — Property offences — Break and enter with intent to commit serious indictable offence

Legislation Cited:

Crimes Act 1900 (NSW).

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

Attorney General’s Application No 1 of 2022 (2002) 56 NSWLR 147

R v Olbrich (1999) 199 CLR 270

Ward v R [2022] NSWCCA 290

Category:

Sentence

Parties:

Rex (Crown)
Ketema Birkneh (Offender)

Representation:

Counsel:
T Spohr (Offender)

Solicitors:
Office of the Director of Public Prosecutions (Crown)
Stacks Collins Thompson Lawyers (Offender)

File Number(s):

2021/266765

Publication restriction:

None

JUDGMENT

Introduction

1. Ketema Birkneh (the offender) appears for sentence after pleading guilty in the Local Court to one count of specially aggravated break and enter and commit a serious indictable offence, namely wounding with intent to cause grievous bodily harm, contrary to s 112(3) Crimes Act 1900 (NSW).

2. The maximum penalty for the offence is 25 years imprisonment. Parliament has also prescribed a standard non-parole period of 7 years.

Approach to Sentencing

3. To the extent that I make findings of fact adverse to the offender, I am satisfied of that fact beyond reasonable doubt. To the extent that I make findings of fact favourable to the offender, I am satisfied of that fact on the balance of probabilities: R v Olbrich (1999) 199 CLR 270 at [27] (Gleeson CJ, Gaudron, Hayne and Callinan JJ).

4. I have taken into account the purposes of sentencing set out in s 3A Crimes (Sentencing Procedure) Act 1999 and had regard to the matters set out in s 21A of the Act.

5. The offender entered a plea of guilty in the Local Court and is entitled to a 25% discount on sentence: s 25D(2)(a) Crimes (Sentencing Procedure) Act 1999.

Facts

6. The parties presented an Agreed Statement of Facts. I have taken the entirety of the document into account in coming to an appropriate sentence. What follows is a summary of the facts relevant to the offender to permit an understanding of the sentence imposed.

7. Azeb Buzneh (the victim) and the offender were married for 17 years and have two children. In November 2019, the relationship ended and the offender returned to Ethiopia to be with his family. While the offender was overseas, the victim changed the locks to the former matrimonial home.

8. The offender returned to Australia in May 2021 and moved into a rental property in Pennant Hills. At this time, divorce proceedings were being finalised. The offender had supervised access to the children and was unhappy with this.

9. During the evening of 17 September 2021, the offender caught a train from Pennant Hills to the victim’s home. The offender went to the back laundry door The offender smashed the window and gained entry to the house.

10. At about 12.30am on 18 September 2021, the victim and the children were woken by the sound of shattering glass. The victim walked downstairs, where she was met by the offender coming up the stairs. The offender was holding a small tomahawk axe and knife in a sheath.

11. The victim tried to barricade herself in her bedroom, but the offender pushed his way inside and began striking the victim with the back of the axe. The children had woken up and became very upset seeing the offender assault their mother. The offender ushered the victim downstairs to a room on the ground floor, where he struck her multiple times with the axe, causing wounds to her right knee, left elbow and left wrist.

12. The offender went upstairs to check on the children. The victim drove to Hornsby Police Station where she spoke to police before being conveyed to hospital by ambulance. The victim was treated for the following injuries:

1. right hand – bruising and grazing;

2. right arm – 5cm long laceration, bruising and tenderness;

3. right leg – deep penetrating wound to the subcutaneous tissue on the medial joint line on the right knee;

4. left shoulder – bruising and grazing;

5. left arm – bruising and grazing, 4cm long laceration deep to the subcutaneous tissue and an 8cm long laceration on the forearm;

6. left hand – 2.5cm laceration on volar side of left hand between ring finger and knuckle deep to the subcutaneous tissue, swelling and bruising; and

7. left leg – bruising, small puncture on the left knee and a 5cm laceration on the left knee.

13. At about 1.30am, the offender contacted 000 and advised the operator that he had been in a fight with the victim. He stated that the victim was injured and bleeding heavily from her hand and leg, and that he had hit her with the back of a small axe.

14. Police attended the victim’s home shortly thereafter. The offender answered the door to police. He was placed under arrest and cautioned. He advised police where the tomahawk axe and knife in a sheath were located. When asked, the offender stated that he had travelled to the address by train and taxi. A squeeze bottle of petrol was located on the kitchen bench. A blue backpack containing a red plastic glass breaker, matches, a lighter, a single person tent and some food was located in the dining room.

15. The offender told police that he had taken the squeeze bottle of petrol to the residence. He said if he did not get to see his children, he planned to set himself alight. He also admitted ownership of the blue backpack. He told police that the victim was preventing him from seeing the children, which was causing significant stress.

Sentencing Assessment Report

16. The Court received a Sentencing Assessment Report which can be summarised as follows. I will try not to repeat matters in the Agreed Facts or that are set out in the offender’s subjective case.

17. The offender was unemployed prior to his arrest and reliant on Centrelink Jobseeker payments. At present, he does not have a job to go to when he is released.

18. He expressed a desire to reside in the Wollongong area upon his release and to return to Ethiopia as soon as he is able.

19. The offender has a criminal history commencing in 1999, with only three prior offences. These are common assault, leave child in motor vehicle without supervision and indecent assault.

20. The offender justified his behaviour on the basis that he was distraught at having not seen his children and he had been using illicit drugs to cope with his distress. He attributed blame to the victim, claiming that she had been abusive and unfaithful to him. He claimed that her poor treatment of him made him angry with her. The offender sought to minimise his actions.

21. The offender did not have insight into how the victim and his daughters may have felt during his actions, although he stated that his eldest daughter was crying and he felt remorseful for this. He had no insight into the potential long-term impacts on the children of the offence. He showed no concern for the victim and minimised her injuries. He stated that he currently holds no animosity towards her.

22. The offender accepted that his actions were wrong. He expressed some remorse for his behaviour claiming that he only realised his actions were crimes whilst he was comforting his children after the incident.

23. The offender reported that during his time in Ethiopia from 2019 to 2021, he was introduced to Khat, a stimulant which is legal in Ethiopia. On his return to Australia in May 2021, he struggled to cope with his life stresses and began using methamphetamine. The offender stated that the offences occurred while he was under the influence of illicit substances and that he had been on a three-week drug binge prior to the offence.

24. The offender denied a history of domestic violence, although he claimed that the victim had been verbally and financially abusive towards him in the final four years of their marriage.

25. The offender stated that his prior violence offences were the result of misunderstandings.

26. The offender claimed that he had been experiencing significant grief due to his not having regular contact with his children. He reported that his mental health improved whilst he was in Ethiopia from 2019–2021, but then worsened on his return to Australia.

27. The offender was initially resistant to considering mental health interventions, however upon further discussion, he was able to identify that he requires some assistance. He expressed a willingness to undertake interventions to address his offending behaviour.

28. The offender satisfactorily completed a Community Service Work Order for 300 hours in 2007.

29. The offender was assessed as a medium risk of reoffending.

The Offender’s Case on Sentence

30. The offender tendered the following documents:

1. psychological report by Dr Thomas Dornan dated 22 November 2022;

2. Positive Lifestyles Certificate dated 27 September 2022;

3. letter of apology from the offender to the Court.

31. The following is a precis of the evidence relied upon by the offender.

32. The offender was born in Ethiopia and was the only child born of his parents’ union. He has half brothers and sisters from his father’s other relationships. He had limited contact with his half-siblings, as they were much older. His father was a farmer who worked long hours, leaving the offender’s mother to raise him. His mother became unhappy in the marriage and left his father when the offender was four, taking the offender with her.

33. Shortly after this, the offender’s mother entered into a relationship with another man who was physically abusive towards him. The violence was extreme; on one occasion, the offender was stabbed in the leg with a spear.

34. His mother had a child with her new partner who died from unknown causes. Upon the death of this child, his mother fled the relationship and the offender returned to his father’s care.

35. His parents eventually reconciled. The offender stated that his father had “anger issues” and was regularly physically abusive towards his mother, as was one of the offender’s older half-siblings. The offender reported that he was fearful and anxious in this environment, and he avoided his siblings.

36. When the offender was 12 years old, the government confiscated his father’s assets and the family struggled to survive. The offender was sent to school over 130 kilometres away from the family home and his mental health suffered. He reportedly performed poorly in school and was sent to live with his uncle. This was a much more stable, loving home environment and he lived with his uncle for the next 10 years.

37. The offender completed high school but did not get into university. The offender reported that he was well-behaved at school and had positive pro-social relationships with his peers and teachers. Upon leaving school, he worked in casual sales roles.

38. When the offender left school, there were multiple attempts to conscript him into the army. At the time, the Ethiopian Civil War was ongoing, and the offender would have been required to fight. A government worker helped him flee to Kenya to avoid conscription when he was 22 years old.

39. The offender spent the next eight years in a refugee camp in Kenya. He stated that he “starved” in his first year at the camp. He recounted regular traumatic experiences at the camp, including being bitten by a scorpion and paralysed for weeks due to the lack of medical care, and being robbed at gunpoint by “bandits”. Dr Dornan opined that the offender’s reported symptoms at the time were consistent with Posttraumatic Stress Disorder (PTSD).

40. The offender met his first wife in the refugee camp and they had three children together.

41. The offender obtained refugee status at age 30 and moved with his first wife and children to Australia. When he first came to Australia, the offender did not work so that he could look after the children. His wife was unable to provide any support in looking after the children, as she was struggling with mental illness caused by her traumatic experiences in the refugee camp. The offender attended TAFE and completed an Advanced Diploma in Accountancy.

42. The offender’s relationship with his first wife deteriorated. The offender’s mental health declined and he travelled back to Ethiopia at this time to seek support from his family. Whilst he was in Ethiopia, his children were placed in foster care by the Department of Community Services. The offender saw his children periodically after he returned to Australia in 2002, however he has not seen them since 2009.

43. The offender met his second wife in Ethiopia and returned to Australia with her in 2002. The offender worked as a kitchen hand, before obtaining employment as a taxi driver. After four years, the offender and his wife purchased a café which they ran for seven years. Following this, the offender bought a chicken shop which was unsuccessful and closed after one year. After being unemployed for a month, the offender bought an existing cleaning business and a coffee van. His wife purchased another café. The offender’s mental health declined with the long hours and pressure of managing three businesses and trying to support his family. Dr Dornan stated that the offender demonstrated limited insight into his mental ill-health or use of work as a maladaptive coping strategy.

44. The offender’s relationship ended in 2019. He claimed that his wife had been financially and emotionally abusive towards him and believed that she was cheating on him. His mental health significantly declined, and he was unable to work. He returned to Ethiopia for family support but was unable to return to Australia until May 2021 as a result of COVID-19 restrictions. By then, his businesses had been sold or closed.

45. The offender has not spoken with his children from his second marriage since his arrest. The offender states that he “desperately” wants his children back in his life.

46. The offender has Type I diabetes but reported otherwise being reasonably healthy.

47. The offender denied using alcohol or illicit substances to cope until 2019. Upon his return to Ethiopia in 2019, he began to regularly use Khat for its anti-depressant-like effects.

48. Three weeks before the offences, the offender began using methylamphetamine as a way to escape his problems. He did not know the quantity he consumed in the lead up to the offences. The offender reported that on the drug he was depressed and anxious. He noted he was missing his children and had stopped sleeping. Dr Dornan opined that the offender’s symptoms in the lead up to the offence were consistent with drug induced psychosis and bipolar disorder. The offender reported that the methylamphetamine impacted his decision-making and consequential thinking.

49. The offender stated that prior to the offending, he experienced changes in his feelings, thoughts, perceptions and behaviour, and that he felt compelled to see his children. The offender stated that he found a knife and tomahawk axe in the storeroom of his apartment complex, which he took with him to his ex-wife’s residence to “protect” himself from his ex-wife’s “partner”. The offender did not know for a fact that his ex-wife had a new partner, but rather suspected that she did, with his paranoid thoughts about his wife’s infidelity persisting after their separation. On arriving at his ex-wife’s home, the offender believed that his suspicions about his ex-wife having a new partner were confirmed when he saw that the internal alarm system was turned off. He stated that when he went into her bedroom, he felt as if he were “in a dream”. When he confronted her about having a partner, she denied it, at which point he became “enraged” and struck her in what he described as “non-vital” places, avoiding “sensitive areas”.

50. After his ex-wife fled, the offender went and sat with the children and reported being “emotionally bereft” after not seeing them for so long. Dr Dornan found that the offender continues to demonstrate cognitive distortions in his justification for the offence. Nevertheless, Dr Dornan found that the offender understands the nature of the offence.

51. Dr Dornan opined that the primary contributors to the offending were his mental ill-health, which gave rise to poor decision making, a loss of consequential reasoning and the development of maladaptive coping strategies, all of which were longstanding issues for him. This was probably exacerbated by drug-induced psychosis, resulting from his binge use just prior to the offences.

52. The offender reported suicidal ideation after his arrest. He denied wanting to hurt his wife, but rather committed the offence to see his children.

53. The offender has continued to work in custody, in logistics, carpentry and clerical roles. The offender is confident that he can secure meaningful employment when he leaves custody.

54. The offender has also completed the Salvation Army’s Positive Lifestyle Program in September 2022.

55. The offender expressed remorse to Dr Dornan.

56. The offender continues to experience flashbacks to his traumas, including regular periods of disturbed sleep in which he has nightmares about his past. These intense periods of distress are often followed by dissociative symptoms and hypervigilance. The offender also reported suicidal ideation in the past, as well as hypomanic episodes, obsessive thinking, paranoia, and psychotic symptoms like hallucinations.

57. Dr Dornan opined that the offender meets the criteria for Persistent Depressive Disorder, chronic PTSD and Bipolar II Disorder. However, Dr Dornan found that he has limited insight into his mental ill-health, however he did express some openness to intervention. Dr Dornan also opined that the offender would need significant, long-term intervention, particularly given that the offender demonstrates paranoia and disordered thinking, an example of which is provided in Dr Dornan’s report.

Consideration

Objective seriousness

58. The offence is objectively very serious. Whilst I recognise that Dr Dornan’s opinion was largely based on the offender’s self-report, I accept most of Dr Dornan’s conclusions because most of them were derived from matters told to him by the offender that were against the offender’s self-interest.

59. The offence was committed in the early hours of the morning. The offender gained access to the premises by smashing a glass window, waking the victim and the children. The offence involved some planning. The offender had brought two offensive weapons with him, a tomahawk and a knife, both of which were capable of inflicting serious injury or death. The offender had also brought the items in the backpack, for which he presumably had some use in mind.

60. The victim tried to barricade herself in her bedroom, but the offender pursued her, forcing his way inside to reach her. The serious indictable offence committed of wounding with intent to cause grievous bodily harm carries a 25 year maximum penalty. The wounding caused is also a circumstance of special aggravation pursuant to s 112(3) of the Act. The wounding was caused by multiple strikes from the tomahawk axe. The victim’s wounds were significant and she also received other injuries. The victim continues to suffer pain and disability from her injuries. The attack involved a considerable degree of violence. The offence was unprovoked and unjustified. The offender accepts by his plea that he intended to cause grievous bodily harm. The victim was defenceless. The experience would have been terrifying for the victim and the children. The victim and the children have suffered emotional trauma as a result of the offence and continue to be fearful at night in their own home.

58. The offender had a deprived upbringing marred by violence, separation from family, trauma and displacement as a refugee. As a result, the offender has developed a complex mental condition characterised by a number of serious conditions that he has sought to ameliorate by drug use. His background and his severe mental condition reduce his moral culpability for the offence to some extent.

59. I have taken into account the maximum penalty and the standard non-parole period.

Deterrence

63. General deterrence is of significance in all domestic violence offences, but particularly in serious offences such as the present.

64. General deterrence may be afforded less weight where the offender suffers from a mental condition because the person is not an appropriate vehicle to be made an example of. I accept Dr Dornan’s opinion that the offender’s mental condition is serious and complex and it has caused some cognitive distortion of the offender’s views relating to the offence and the circumstances leading up to it. The weight to be afforded to general deterrence can be reduced to some extent.

65. There is also a need for specific deterrence. The offender has limited insight into his offending conduct, probably as a result of his complex mental condition which I accept is a direct result of the trauma he has been exposed to throughout his life and his drug use. There is a need for the penalty imposed to provide some protection for the victim, particularly in circumstances where the offender’s mental condition has impacted his ability to distinguish right from wrong when it came to his dealings with her. He will need to be supervised on parole with a view to treating his complex mental conditions and addiction issues to reduce his risk of reoffending.

Aggravating factors

66. The offence was committed in front of children: s 21A(2)(ea) Crimes (Sentencing Procedure) Act 1999. The children were eight and three at the time of the offence and it is well accepted that exposure of children to domestic violence can lead to significant adverse impacts in their development.

67. The offence was committed in the home of the victim: s 21A(2)(eb) Crimes (Sentencing Procedure) Act 1999.

Mitigating factors

68. The offender does not have any significant record of previous convictions: s 21A(3)(e) Crimes (Sentencing Procedure) Act 1999 (NSW). The offender’s criminal history is fairly limited and he is entitled to some leniency by reference to it.

69. The offender has expressed some remorse, but I am not satisfied that the mitigating factor provided for by s 21A(3)(i) Crimes (Sentencing Procedure) Act 1999 is made out. The offender’s insight is presently limited as a result of his mental condition. It is possible that, with appropriate treatment, his insight and acceptance of responsibility will improve. His plea of guilty also indicates remorse.

Prospects of rehabilitation

70. The offender has some prospects of rehabilitation if he can engage with treatment for his mental health and remain abstinent from drug use. I note that the offender has not previously had a mental health diagnosis or sought treatment. That is not surprising in a person with his background where significant trauma is a normal part of everyday life. His drug use, whilst relatively recent, presents a significant risk of exacerbating his drug induced psychosis. His prospects of rehabilitation remain guarded as a result of his lack of insight and lack of prior treatment.

71. I have taken into account the restrictions imposed on prisoners serving sentences in New South Wales in response to the COVID-19 pandemic. I am satisfied that those restrictions will and have made the offender’s time in custody more onerous.

72. The offender has been in custody for the offence since he was arrested at the scene. I will backdate the sentence to that date.

73. I have had regard to the decision of Ward v R [2022] NSWCCA 290 in which Fagan J analyses a number of other decisions concerning the penalty imposed for this offence. I note the limitations involved in assessing comparable sentences.

74. The offender co-operated with the authorities. After the incident he called the police and waited for them to arrive. He made full admissions.

Penalty

75. I have had regard to s 5 Crimes (Sentencing Procedure Act) 1999 and I am satisfied, having considered all other available sentences, that no sentence other than imprisonment is appropriate.

76. Ketema Birkneh is convicted.

77. I have taken into account the Victim Impact Statement of Azeb Buzneh. The offence continues to affect the victim and the children. Understandably, they do not feel safe in their own home. The victim’s injuries continue to affect her. I accept that the impact of the offence will be long lasting. I thank the victim for taking the time to prepare and submit her VIS.

78. I make a finding of special circumstances. This is the offender’s first time in custody and he has complex mental health and drug addiction issues that warrant a longer period of supervision on parole.

79. I impose a term of imprisonment of 5 years and 3 months with a non-parole period of 3 years and 3 months to date from 18 September 2021. The non-parole period will expire on 17 December 2024 and the head sentence will expire on 17 December 2026.

80. The offender will become eligible to be released on parole on 17 December 2024.

81. I will extend the duration of the order made in the Local Court on 21 April 2022 so that the apprehended domestic violence order expires on 17 December 2026.

**********

Decision last updated: 08 May 2023