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…