R v Debresay - [2016] VSC 804

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2016 0014

THE QUEEN
v
MUSSIE DEBRESAY	Accused

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JUDGE:	T FORREST J
WHERE HELD:	Melbourne
DATES OF HEARING:	17 November, 19 December 2016
DATE OF SENTENCE:	21 December 2016
CASE MAY BE CITED AS:	R v Debresay
MEDIUM NEUTRAL CITATION:	[2016] VSC 804

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SENTENCE – convicted of manslaughter at trial – infant victim in the care of the accused - delay – anticipated hardship in custody - sentenced to 11 years’ imprisonment with a minimum non-parole period of 8 years.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr D. Dann QC and Mr B. Johnston	Chris McLennan & Co
For the Accused	Ms S. Flynn and Ms G. Coghlan	Office of Public Prosecutions

HIS HONOUR:

Mr Debresay, you have been found guilty of the manslaughter of Tonnja Huynh. She died on 13 May 2005 when she was just two years old. You had commenced a relationship with Jennifer Louey, Tonnja’s mother, in February 2005. Jennifer Louey was separated from Tonnja’s father, Tai Huynh, and lived with her three children, A L (then 4), Tonnja, and K H (then 1) in a housing commission flat in Maidstone. Jennifer Louey became infatuated with you, and whatever parenting skills she may have possessed were compromised by this infatuation. For the first few months of your relationship you were working as a security guard, but your employment ceased on 3 May 2005. After this date, Jennifer and the children began staying overnight at your small one-bedroom flat in Hyde Street, Footscray. It seems that in the period shortly before Tonnja’s death you assumed some of the disciplinary duties relating to the children. I have formed the view that by this time Jennifer Louey had become a grossly inadequate mother and I accept that she readily ceded these duties to you.

On Thursday 12 May 2005, Jennifer Louey and her children stayed overnight at your unit. You were present at the unit continually from about 10.30 pm onwards. When you returned to the unit at this time, the children were in the lounge room. K H was in her pram, Tonnja and A L were on couches. It is not clear to me whether they were asleep or not at this time. At some stage during the evening or early morning, you left your bedroom and entered the lounge room. In various accounts, Jennifer Louey has described hearing a loud bang from the lounge room area that immediately preceded your exit from the bedroom.

On 13 May 2005, A L described to police and his family members what he saw occur. He told them that Tonnja was crying and you took her to the kitchen area. He said Tonnja was sick and you told her to sit down on the kitchen floor. He said that Tonnja had done ‘wee wee on the couch’ and that Tonnja was naughty. He said that you stepped on Tonnja and demonstrated a stamping…

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 Debresay

Details

AGLC: R v Debresay [2016] VSC 804
Case: [2016] VSC 804
Decision Date: 21 December 2016

CaseChat Overview and Summary

The matter of R v Debresay came before the court following the conviction of the defendant, Debresay, for the manslaughter of an infant under their care. The court was tasked with determining an appropriate sentence, considering the unique circumstances of the case, including the delay in sentencing and the anticipated hardship that custodial time would pose.

The primary legal issue before the court was the determination of an appropriate sentence for the crime of manslaughter, particularly given the vulnerable nature of the victim and the specific circumstances surrounding the offence. The court also needed to weigh the principle of deterrence against the potential for rehabilitation, and consider the impact of any delay in sentencing on the accused.

The court took into account the gravity of the offence, the vulnerability of the victim, and the fact that the accused had delayed the proceedings. The court found that while the delay had caused some hardship, it was not sufficient to warrant a significant reduction in the sentence. The court emphasised the need for general deterrence and the importance of protecting vulnerable individuals. Ultimately, the court sentenced Debresay to 11 years' imprisonment with a minimum non-parole period of 8 years, balancing the need for punishment with the potential for rehabilitation.

Orders