R v Jenbare - [2016] NSWSC 1317

Supreme Court

New South Wales

Medium Neutral Citation: R v Jenbare [2016] NSWSC 1317
Hearing dates: 22, 23, 24, 29, 30 August 2016; 5 September 2016
Decision date: 16 September 2016
Jurisdiction: Common Law
Before: McCallum J
Decision:
Offender sentenced to a term of imprisonment with a non-parole period of 5 years commencing on 9 April 2014 and concluding on 8 April 2019 and a balance of term of 4 years concluding on 8 April 2023.

Catchwords: CRIME – sentencing – manslaughter on basis of substantial impairment – serious offence involving multiple stab wounds – where offender offered plea of guilty to manslaughter at earliest opportunity – underlying condition of severe, post-traumatic stress disorder, depression and cognitive impairment as survivor of torture while political prisoner in Ethiopia and trauma in refugee camps – unanimous psychiatric evidence that offender’s capacity to control himself substantially impaired – significant degree of impairment of offender’s ability to control himself
Legislation Cited: Crimes Act 1900 (NSW), s 23A
Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2), s 44(2)
Cases Cited: Muldrock v The Queen (2011) 244 CLR 120 [2011] HCA 39
Catley v R [2014] NSWCCA 249
R v Tarrant [2016] NSWSC 1155
R v Halloun [2014] NSWSC 1705
Sumpton v R [2016] NSWCCA 162
Category: Sentence
Parties: Solomon Jenbare (offender)
Regina (Crown)
Representation:
Counsel:
B Rigg SC (offender)
P Lynch (Crown)
Solicitors:
Jamison Lawyers (offender)
Director of Public Prosecutions (Crown)

File Number(s): 2014/108407
Publication restriction: None

Judgment

HER HONOUR: Soloman Jenbare was arraigned on indictment for the murder of his wife, Wubanchi Asefaw. He pleaded not guilty to the charge of murder but guilty to manslaughter. The Crown did not accept that plea in discharge of the indictment and he was tried for murder.
The offender does not dispute that he stabbed his wife, causing her death. The central issue at trial was his psychiatric condition at the time of the killing, which raised the partial defence of substantial impairment by abnormality of mind under s 23A of the Crimes Act 1900 (NSW). The trial was conducted on the basis that, but for the establishment of that defence, the jury would be satisfied that he was guilty of murder. The basis for the defence was that the offender’s capacity to control himself was substantially impaired by reason of severe, chronic post-traumatic stress disorder, depression and cognitive impairment. The offender suffers from those conditions as a survivor of torture during a period when he was a political prisoner in Ethiopia and later trauma experienced in refugee camps in Kenya and Somalia. The offender came to Australia as a refugee from Ethiopia in 1999.
After a short trial limited to the issues raised by the defence, the jury returned a verdict of not guilty of murder but guilty of manslaughter. I am satisfied that the verdict reflects acceptance of the defence of substantial impairment, which found strong support in the evidence. Manslaughter was left to the jury on the alternative basis of a dangerous and unlawful…

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 Jenbare

Details

AGLC: R v Jenbare [2016] NSWSC 1317
Case: [2016] NSWSC 1317
Decision Date: 16 September 2016

CaseChat Overview and Summary

In the case of R v Jenbare, the defendant was charged with manslaughter. The incident in question involved multiple stab wounds inflicted upon the victim. The case was heard in the Supreme Court of Victoria. The central issue for the court to determine was whether the defendant's capacity to control himself was substantially impaired at the time of the offence due to severe post-traumatic stress disorder, depression, and cognitive impairment. These conditions arose from the defendant's past as a political prisoner in Ethiopia and subsequent trauma experienced in refugee camps.

The court was tasked with interpreting the statutory provision for manslaughter based on substantial impairment. The prosecution argued that despite the defendant's plea of guilty to manslaughter at the earliest opportunity, the gravity of the offence warranted a lengthy sentence. The defence, however, contended that the defendant's underlying psychological conditions significantly impaired his ability to control himself, thereby warranting a reduced sentence. The court had to consider the psychiatric evidence and weigh it against the severity of the crime to arrive at an appropriate sentence.

The court found the psychiatric evidence compelling, concluding that the defendant's capacity to control himself was indeed substantially impaired. The unanimous expert opinion supported this finding, and the court acknowledged the severe trauma the defendant had endured. Despite the seriousness of the offence, the court determined that the mitigating factors of the defendant's mental state at the time of the offence warranted a lesser sentence. The final sentence reflected the balance between the need for punishment and the recognition of the defendant's impaired state.

Orders