R v Mohamed
[2008] VSC 299
•13 August 2008
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No 1567 of 2007
| THE QUEEN |
| v |
| ABDEWELI MOHAMED, SHARMAKE AIDID and MA |
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JUDGE: | NETTLE JA | |
WHERE HELD: | Melbourne | |
DATES OF HEARING: | 2-18 June, 1 August 2008 | |
DATE OF SENTENCE: | 13 August 2008 | |
CASE MAY BE CITED AS: | R v Mohamed & Ors | |
MEDIUM NEUTRAL CITATION: | [2008] VSC 299 | |
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CRIMINAL LAW – Sentence – Manslaughter by unlawful and dangerous act – Two accused found guilty of manslaughter and one found guilty of assault – Death resulted from altercation on busy road late at night – Alleged break in causation – Deceased ran from altercation and was struck by vehicle travelling at excessive speed – Young offenders all students – Evident remorse – Excellent prospects for rehabilitation – Two sentenced to Youth Justice Centre orders of three years – Third sentenced to 12 months Community Based Order.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr C W Beale with Mr P A Stefanovic | Mr S Ward, Acting Solicitor for Public Prosecutions |
For the Accused | Mr D A Glynn with Mr P McClure | Doogue & O’Brien |
For the Accused | Mr D J McKenzie | Victoria Legal Aid |
| For the Accused MA | Mr A McL Jackson | Gleeson (Michael J) & Associates Pty |
HIS HONOUR:
Sharmake Aidid and MA, you have been found guilty of the manslaughter of Lionel Norris on 6 December 2006 and, Abdeweli Mohamed, you have been found guilty of assaulting Mr Norris.
The facts
On 6 December 2006, the three of you drove together in a borrowed car to The Mall in Bell Street Heidelberg West. After you had spent about an hour there together, you set off home in the car. Along the way, you pulled into the BP Service Station in Bell Street, Heidelberg Heights to buy petrol. You, Abdeweli Mohamed, got out of the car to put the petrol in the tank while the others of you remained in the car. As you were filling the tank, Lionel Norris wandered up to you and asked you whether you could spare a cigarette. He was drunk and belligerent and positioned himself uncomfortably close to you. You told him, as was the fact, that you did not smoke.
Mr Norris continued on into the petrol station shop and inquired of the attendant whether his wife had been in to telephone the police. After some hesitation, the attendant told him that she had been. You, Abdeweli Mohamed, then entered the shop to pay for the petrol, and at that point Mr Norris left the shop and headed out across the apron of the station. As he did so, he gestured towards you, Sharmake Aidid and MA, as you sat in the car and he made a threatening sign with his hand, like a cocked pistol, and shouted drunken abuse at you. Then he turned right onto the northern footpath of Bell Street and began to walk westward.
Moments later, Abdeweli Mohamed returned from the shop and got back into the car, and the three of you sat together for a moment in the car discussing Mr Norris’s irrational behaviour. You, Sharmake Aidid, then drove the car out of the petrol station and right onto Bell Street with the intention of heading west to Waterdale Road and then north along Waterdale Road towards home. As you drove past Mr Norris on Bell Street, however, he yelled more abuse at you and threw some stones or pebbles in the direction of the car. In Sharmake Aidid’s words, that made you ‘really pissed off’ and, in MA’s words, it made you ‘really furious’. You decided to park the car and confront him and so you turned the car right into Gotha Street and then left into Eden Street, which bends around to the south, and then pulled the car up in Eden Street facing south about 50m north of Bell Street.
When Mr Norris realised that you had stopped the car, he started to cross Bell Street to the south side in order to avoid you. You, Sharmake Aidid and MA, therefore ran after him, diagonally across Eden Street and into Bell Street in order to confront him. You, Abdeweli Mohamed appear to have been less enthusiastic. You hesitated for a moment, locking the car, and then followed the others at a brisk walking pace.
Mr Norris was almost to the southern side of Bell Street when he realised that the three of you were coming after him. He then turned to face you and he may also have taken a few steps northwards back towards you, so that you met him more or less in the middle of the road; Sharmake Aidid, within about 20cm of him, MA, a little further away, and Abdeweli Mohamed, about a metre behind.
All three of you then yelled abuse at the Mr Norris for his behaviour at the petrol station and for throwing pebbles at your car. He responded by yelling more abuse at you and something to the effect of ‘bring it on’. Possibly, he also swung a fist in your direction and threw a can of drink at you. Possibly, however, he simply dropped the can or you, Sharmake Aidid or MA, knocked it from his hand when you hit him. In any event, the can landed harmlessly on the roadway but there was then a fight with Mr Norris, in which all three of you were involved, with arms and fists and legs flying.
The fight continued for several minutes until a large semi-trailer travelling in the west-bound carriageway came to within about 100 metres of where you were fighting in the centre west bound lane. At that point, you, Abdeweli Mohamed, disengaged from the fight, took off east along the southern footpath, and then ran north across Bell Street behind the semi-trailer until you reached the northern footpath. But you, Sharmake Aidid and MA, retreated only to the southern footpath and remained there, one of you jumping up and down on the spot like a boxer, and both of you intent on continuing the confrontation.
Mr Norris was on all fours on the roadway and remained there for some 8 to 10 seconds looking south at the two of you on the footpath. The semi-trailer was under brakes, and by that stage had slowed to a speed of between 10 and 15kph, but was continuing to bear down on him. When it got to within about 10m of him, one or other of you stepped back onto the roadway towards him, perhaps to warn him, and with that he stood up and turned around in one movement and ran away north across the road.
Just then two cars were approaching from the west in the eastbound carriageway – a Volkswagen Golf, travelling in the centre east bound lane at a speed of approximately 70kph; and a BMW 316i, travelling in the farthest east bound lane, to the left and some distance to the rear of the Golf, at much greater speed. As Mr Norris ran north across the road, he saw the Golf and veered slightly east so as to pass unharmed in front of it. But he did not appear to see the faster moving BMW, possibly because it was obscured from view by the Golf. In the result, just as he cleared the Golf, the BMW swept past on the left-hand side of it and hit him at a speed of between 100 and 130kph in a 70kph zone.
The impact of the collision was so severe that it severed Mr Norris’ right leg, which flew across the road to one of the west bound lanes, and catapulted Mr Norris against the windscreen and then into the air, and then another 70m along the road to a point on the centre east-bound lane.
The semi-trailer driver saw the tragedy as it unfolded and brought his rig to a halt within metres. He rushed to assist Mr Norris, using his mobile telephone to call 000 as he ran across the road. As he moved he saw you, Sharmake Aidid and MA, running away ahead of him and up Eden Street towards the car, and for a moment he gave chase while yelling at you to stop. But he had a bad heart and had to pull up short, thus allowing you to escape. Having caught his breath, he ran on to where Mr Norris was lying on the road and retrieved his severed leg in order to save it from being further damaged by passing cars, and then he waited with Mr Norris for an ambulance to arrive. It did so within minutes but it was too late. Mr Norris had already died of massive injuries. Meanwhile, you, Abdeweli Mohamed, joined Sharmake Aidid and MA in the car and the three of you sped away to your homes.
Nature and gravity of offences
The Crown’s case at trial against you, Sharmake Aidid and MA, was that by assaulting the deceased and remaining on the southern footpath ready to continue the confrontation, you committed an unlawful and dangerous act which created in the mind of the deceased a well founded apprehension of further violence, so as to make it natural that he should turn and run north despite the risk of oncoming traffic. The Crown thus contended, and I take the jury to have found, that the assault coupled with your continued presence on the southern footpath was a significant or substantial cause of his flight. The Crown further contended, and I take the jury also to have accepted that, although the speed of the BMW was excessive, it was not so great as to make the approach of that car at that speed something beyond the scope of the risk created by your conduct, and hence it did not break the chain of causation between your unlawful and dangerous conduct and the deceased’s death. I sentence you on that basis.
The Crown’s case against you, Abdeweli Mohamed was that, although you disengaged from the fight when the semi-trailer first approached, your role in the assault remained a significant or substantial cause of the deceased’s flight north across the road. The Crown argued that the continued presence of Sharmake Aidid and MA on the southern footpath did not break the chain of causation between your initial involvement and the deceased’s flight north into oncoming traffic. But in acquitting you of manslaughter, it is apparent that the jury rejected that contention. Evidently, they considered that the initial assault was not enough in itself to create a well founded apprehension of violence. It required the continued presence of Sharmake Aidid and MA on the southern footpath to have that effect. Hence, the jury found you guilty only of common law assault.
Manslaughter
The nature of the crime of manslaughter is such that it may vary from ‘the very confines of murder’[1] down to a merely nominal offence of involuntary homicide. Consequently, although the maximum sentence for manslaughter is 20 years’ imprisonment, the range of possible penalty is very wide indeed.[2] But although there is no established sentencing tariff,[3] cases in which the intended level of harm is slight and the consequences are great tend to be towards the lower end of the scale.[4] In my view, the manslaughter of which you, Sharmake Aidid and MA, have been found guilty falls within that category.
[1]Timbu Kolian v The Queen (1968) 119 CLR 47, 68 (Windeyer J); R v Osip (2000) 2 VR 595, 610 [46] (Batt JA).
[2]R v Moore [2002] VSCA 33, [16] (O’Bryan AJA).
[3]R v Blacklidge, NSWCCA 12. 12. 95, BC9501665, 4.
[4]Fox & Frieberg, Sentencing, State and Federal Law in Victoria, 2nd Ed at [12.218].
It is of course a serious offence. Although, you were both youthful offenders and inexperienced, you were also educated and intelligent, and the deceased was drunk and irrational. It should have been obvious to you that, by confronting him on the roadway, you were exposing him to an appreciable risk of serious injury. I allow that you were provoked.[5] The deceased’s drunken behaviour towards you was unlawful and insulting. But in his state of drunkenness, it should have been obvious that there was no chance of persuading him of his misbehaviour, still less that he would acknowledge it. Your pursuit of him and attack on him in those circumstances necessitates a penalty which is adequate to express the court’s denunciation of your conduct and to provide general deterrence against others engaging in conduct of that kind.
[5]Okutgen (1983) 8 A Crim R 262, 264; but cf Pilgrim (1983) 5 Cr App R (S) 140; Wilson (1981) 3 Cr App R (S) 30.
In terms of moral culpability, there is more to be said in your favour. It has not been suggested that you intended to cause the deceased any serious harm. Nor is it suggested that you did inflict any serious injuries. There is no doubt that there was a fight with arms and legs flailing but, as the semi-trailer driver observed in his evidence, you did not do much of a job on the deceased. After you retreated to the footpath, Mr Norris was still well enough to pick up his drink off the road and run north across the road at speed. The indications are that you simply wanted to teach him a lesson, and principally to get him to acknowledge that his behaviour was unacceptable, and your records of interview show that you did not give any thought to the sorts of injuries which might occur. To say the least, it was most unfortunate that the BMW was travelling at such an excessive speed. If it had not been, I suspect that the deceased may have cleared it.
Common law assault
The maximum penalty for common law assault is five years’ imprisonment, although once again the sentencing range is wide. But the assault of which you, Abdeweli Mohamed, have been found guilty is, in my view, towards the lower end of the range.[6] Your involvement ended while the deceased was still alive and well, and so little affected by the assault that he was still able to pause to collect his can and then run at a high speed north across the road. The offence is serious in that it is associated with the deceased’s death. But the jury has found that you were not responsible for that, and you are not to be punished as if you were.
[6] DPP v Kosmidis [2008] VSCA 66; DPP v Mourkakos [2007] VSCA 312, R v King & Ngyoune [2007] VSCA 263; R v Lacey [2006] VSCA 4, DPP v Mitchell [2006] VSCA 108; R v Rodden [2005] VSCA 24.
Victim impact
At the time of his death the deceased was 42 years of age and for the last eight years of his life had been living in a relationship with a woman whom he regarded as his wife and who was the mother of his eight year old son. He was unemployed and had been so for a long time, and he was given to the excessive consumption of alcohol and to becoming aggressive when drunk. Police had assisted his wife to obtain an intervention order against him only one month before his death, when he assaulted her to such an extent that she had to be taken to the Austin Hospital for treatment. Despite that order, he hit her again so hard on the night he died, before she went to the BP petrol station, as to make her face bleed and cause her to call 000 for assistance. According to her evidence, however, he was otherwise a good man who cared for her and their son and although there was some evidence of ill-health, he may still have had the greater part of his life still ahead of him.
Personal circumstances
Each of you came to this country from Somalia as a child in the 1990’s and since then have worked hard to succeed. Each of you completed secondary school and, at the time of the deceased’s death, were engaged in tertiary studies at university or TAFE. But for your involvement in the deceased’s death, it is likely that you would have gone on with your studies without interruption.
(i) Abdeweli Mohamed
Abdeweli Mohamed, you were 19 years of age at the time of your offence and are now 21. You are one of six children born to your father and mother in Mogadishu before coming to Australia with your mother in 1996. You became an Australian citizen in 1998.
You were brought up in the Muslim faith and therefore you have never taken alcohol or drugs. You have never had any psychiatric problems. You have no prior convictions and, apart from the assault of which you have now been found guilty, there is nothing to suggest that you have ever before been involved in any form of criminal behaviour. According to a reference from Mr Malyun Ahmed of Spectrum Migrant Resource Centre, you have the complete love and support of your family and a sound group of friends. You are keen on sport and play basket-ball and indoor soccer and have played a pro-active role in coordinating Spectrum MRC soccer matches. Your scholastic achievements are also impressive. You completed the VCE at Banksia Secondary College in 2005 and, after vacation employment in telemarketing, you began to study marketing at Swinburne; later transferring to Victoria University. You lost a good deal of time as a result of the trial and understandably your studies were disrupted. But, as I was told by your counsel, you are now back on track studying again for your degree and, circumstances permitting, you are expected to complete it within the next two years. By all accounts, you are a young man of excellent character and reputation, and your offending in this case should be seen as an aberration which is most unlikely ever to be repeated.
(ii) Sharmake Aidid
Sharmake Aidid, you were 19 years of age at the time of offending and you are now 20 years and 11 months. You were born in Somalia, the youngest of seven children and your father was killed in the civil war when you were two. The remainder of your family subsequently migrated to Kenya as refugees and remained there in a refugee camp in Utanga between 1992 and 1995, and thereafter you came to Australia with your mother and two of your siblings. Two other brothers followed some years later but one of them has since died at his own hand. To begin with, you had some difficulty in adapting to life in this country but after learning English at school you had no significant problems in assimilating with others. You too were brought up in the Muslim faith and consequently have never used drugs or alcohol. While growing up, you had close and supportive relations with other members of your family and it is said that as a result you have a strong sense of duty and responsibility towards the care and wellbeing of your mother. Unfortunately, she does not speak English and is therefore socially isolated. She is also in need of continuing medical treatment and is dependent upon other family members to make necessary arrangements.
Like Abdeweli Mohamed, you are without prior convictions and there are no indications that you have ever been involved in any form of criminal behaviour; and, according to a reference provided by Amina Hussein of Banyule Community Health, you are well respected in the community and have been involved in voluntary community activities. You are also good student. You too completed the VCE at Banksia Secondary College and, it is reported in a reference supplied by the Senior School Manager of that College that you were a popular and well respected student and a keen basket-ball player who interacted well with other students in your year level. You had an excellent attendance record and, despite having to deal with a number of serious family issues, including the loss of your father and brother, you remained focussed on your studies and completed your VCE and were successful in gaining entry to Latrobe University.
The pressures on you as a result of being charged with manslaughter were such that you deferred the second year of study at university. During the period of deferral, however, you worked for Telstra in customer service and, according to a reference from your supervisor, while there you were a major influence on the centre and known for your hard work and effort to support others, often conducting team meetings and performance coaching on different products and services. You were found to be an excellent employee who was kind-hearted, considerate and honest.
Evidence was also given by Senior Sergeant Michael Kendrick Wells of the Victoria Police concerning his association with you through voluntary work with Somali and culturally and linguistically diversified youth. Mr Wells is a Detective Sergeant with the Ethical Standards Department and holds a Bachelor of Arts degree and Graduate Diplomas in Criminology and Adolescent Health and Welfare. His work with the Somali community was supported by the Victoria Police. Mr Wells coached the basket ball team of which you were a member for approximately two years between the ages of 16 and 18 and found that you generally displayed leadership qualities within your peer group, exercising self control while trying to resolve player tensions. In Mr Wells’ opinion, you are a young man of good character and considerable ability with enormous potential as a future leader in the Somali community and as a valued member of society. Before you were charged with manslaughter, Mr Wells had no doubts that you were on the right track and very much focussed on university. It was a matter of considerable surprise for him to learn that you had been charged, and he considers that your offending was plainly out of character. Mr Wells spoke to you in custody not long after you had been charged and he found you to be very remorseful and overwhelmed by the magnitude of the tragedy. Since then, he has met you on three or four occasions to discuss your welfare and plans for the future, and the welfare of your family, and he has watched you come to terms with the enormity of the tragedy and to take responsibility for your actions. He considers that you have shown genuine remorse for your actions.
(iii) MA
MA, you were 17 years old at the time of offending and you are now 19. You are the fifth eldest of 10 children and you too came to this country as a refugee from Somalia via Kenya. Your father was wounded in the civil war in Somalia and still suffers from the injuries he sustained. They are such as to preclude him from engaging in full time employment but he devotes his time to helping the Somali community and he is a respected leader of the community.
You parents strove to give you a first-class upbringing and to instil pro-social values in you, and as a result you have no prior convictions and there is no suggestion that you have ever before been involved in any form of criminal behaviour. Like your co-offenders, you were brought up in the Muslim faith and have never used alcohol or drugs. You too completed the VCE at Banksia Secondary College and in the following year you went on to Box Hill TAFE to study for a Certificate in Financial Services (Accounting), that being the first of two steps towards qualification for a Diploma of Accounting which would qualify you for entry to the accounting profession.
Mr Gerry Fogarty, the Co-Principal of Banksia-La Trobe Secondary College, has provided you with a reference in which he reports that you were a conscientious and trustworthy student during your final year at school. You contributed positively in the classroom and were respectful to teachers and fellow classmates. You demonstrated leadership skills around the school and were a positive role model to younger students. You were a member of the senior school teams in basket-ball and soccer and helped coach junior school teams. On weekends you worked with one of the teachers as a voluntary coach in soccer clinics for primary students and you were well received by those students and their parents. Since the death of the deceased, you have demonstrated remorse for your actions and have behaved in a responsible and mature manner. In Mr Fogarty’s opinion, you have great prospects of rehabilitation and will become a valued member of society. Despite setbacks associated with the trial, you are still on track to complete the Certificate in Financial Services and, circumstances permitting, you wish to go on then to the Diploma of Accounting and thus qualify as an accountant. You have also been involved on a volunteer basis and sometimes for pay in assisting immigrant children.
I have been provided, too, with references from Dr Hussein M. Nur Haraco of the Somali Australian Council of Victoria and Mr Awes Amin, Chairperson of the Somali Inter-Riverine Community Development Association, Inc in which they report that you are well known as a young man of excellent character who has contributed significantly to helping your community and for whom involvement in the death of the deceased was entirely out of character.
Pre-sentence reports
In anticipation of imposing sentence, I have received pre-sentence reports in respect of both Sharmake Aidid and MA pursuant to s 96 of the Sentencing Act 1991.
(i) Sharmake Aidid
The authors of the pre-sentence report concerning you, Sharmake Aidid, interviewed you on 26 June 2008 and 8 July 2008. Their report contains extensive details of your family history and upbringing that confirm and expand upon the few details which I have already mentioned. It notes that you have no prior history of offending and no other matters before the court and that you present as a mature young person who is open and co-operative with authorities. In your interviews with the authors of the report you showed regret and remorse for your actions and a degree of insight and empathy into the impact of your offending; most significantly upon the deceased and his family, others who were present at the time of the deceased’s death, and the witnesses who were forced to relive the experience during the course of the trial. You expressed a desire to have a future and to avoid further contact with the criminal justice system and so to use educational and others services and opportunities which are available to you in the prison system.
The authors of the report note that since the trial you have been remanded for sentence in adult custody in the Melbourne Assessment Prison, but that you have there attempted to isolate yourself by trying to stay away from other inmates. Consequently, you have spent the majority or your time in your cell. They note too that you are uncomfortable with older prisoners who are proud of what they have done, and the fact that you are one of only a few black people in the centre unfortunately contributes to your sense of isolation and intimidation.
The authors consider that, based upon your absence of prior offending and subsequent involvement with the criminal justice system, your willingness to accept responsibility for your offending and its consequences, your maturity and insight, and your reported pro-social goals for the future, including training and employment, you present with strong prospects for rehabilitation. They are, however, also of the opinion that, because of your relative youth, absence of contact with or exposure to the criminal justice system, and some reported emotional issues (including low mood and stress), it is highly likely that you would be subjected to undesirable influences within the adult prison system, particularly from those inmates who present with entrenched offending patterns and lifestyle. On that basis they assess you as having met the criteria under s 32(1) of the Sentencing Act 1991 and thus as being a suitable candidate for a Youth Justice Centre Order.
Their conclusion is supported by the opinion of Ms Gina Cidoni, clinical psychologist, who states that intellectual testing was indicative of average capacity with no signs of cerebral dysfunction and that the results of personality testing yielded a profile that was well within the normal range with no indication of any major psychological/psychiatric disorders, but with feelings of sadness, hopelessness and emotional lability, concern about the future and feelings of remorse, regret and too much worry with variable concentration. Mr Healey further opines that your offending in December 2006 appeared to be at odds with your presentation on interview and that your regret and remorse were evident from the outset. In Mr Healey’s view, your youth and presentation raise concerns about your continuing ability to cope in the adult prison system and he agrees with the authors of the pre-sentence report as to the dangers of exposure to negative influences in that environment. He considers that you would be a target for standover and bullying and that your mental health could deteriorate in adult prison, and that your prospects of rehabilitation would be far greater in youth detention.
I accept those views. In face of the evidence before me, I consider that you are truly remorseful and that you do have strong prospects of rehabilitation, or at least that you would do so if you were kept out of the adult prison system and afforded the educational and other opportunities which are available in a Youth Justice Centre.
(ii) MA
The authors of the pre-sentence report in respect of you, MA, interviewed you on 25 and 26 June 2008. Their report contains considerable detail of the family and educational history which confirms the few details to which I have referred. In the authors’ view, you also meet the criteria for a Youth Justice Centre Order, for the reasons that, although you do not present as immature, you have no criminal history, and no exposure to the adult prison system and, therefore, you are totally unaware of the norms associated with the closed central institutionalised nature of adult gaol. As a result they say, if you were sent to adult prison, you could well be subjected to undesirable influences in that environment. At the same time, the authors say, your educational history suggests considerable positive participation and personal achievement; you have engaged in community volunteer work; and while remanded at two youth justice centres you have demonstrated a willingness to engage with services. In the authors’ opinion, all of that implies positive prospects for the sort of rehabilitation for which a Youth Justice Centre is particularly well adapted, in that it offers a full range of age-appropriate programmes and therapeutic options specifically targeting offending behaviour and the contributing factors.
Those views are supported by the opinion of Dr Michelle Wauchope, psychologist. You presented to Dr Wauchope as open, honest, co-operative and forthcoming, and happy to help in providing information. You seemed to her to be genuinely remorseful for your part in the events which led to the deceased’ death although still perplexed as to how matters could have developed as they did, and as to why you and the your co-offenders alone were the only ones charged in connection with the deceased’s death. Dr Wauchope also notes that one consequence of your relatively sheltered background is a degree of naiveté as to the ways of the world and particularly as to the ways in which a large proportion of society frequently misbehaves. She suggests that your naiveté is evidenced by the fact that you honestly believed that you could persuade the deceased of the errors of his ways despite his state of drunkenness.
Psychological personality testing yields results which are consistent with your presentation during interview and your apparent emotional and psychological stability. Cognitive distortion scale testing places you well away from any indications of a condition which might affect your functioning. Your coping skills test results suggest a positive sense of self-worth and outlook towards others. Dr Wauchope is also of the view that it is highly desirable that you be kept out of adult gaol and within the focus of rehabilitation in the Youth Justice Centre environment, where you would have maximum opportunity to continue with your studies and thus best advance towards rehabilitation.
I accept those recommendations. It appears to me that there would be very little to gain and in all probability a great deal to lose by imprisoning you within an adult gaol.
Sentencing considerations - Manslaughter
In sentencing each of you I am required among other matters to have regard to current sentencing practices. Recognising, as already noted, that the range of penalties for manslaughter is very wide, the most recently published sentencing statistics for Victorian Higher Court show that in the five years to 2006, the lowest custodial sentence passed was of three years’ imprisonment and that the average custodial sentence varied between five years and nine months’ and seven years and nine months’. Those figures, however, are of only limited assistance because so few of the cases surveyed accord with the facts of this case. The bulk of those which were singled out for mention in the course of argument are distinguishable on several bases.
In R v PP[7] a 15 year old offender was sentenced to six years imprisonment with a non-parole period of four years on conviction on one count of unlawful and dangerous act manslaughter committed by stabbing in the course of a melee. The judge considered that the nature and gravity of the offence was too serious to permit of a Youth Training Centre Order. On appeal[8] the sentence was reduced to five years, with a non-parole period of two and a half years, because the court considered that the sentencing judge had failed when setting the non-parole period to give sufficient weight to the lack of prior convictions, excellent character and strong prospects of success of the offender.
[7][2002] VSC 578.
[8](2003) 142 A Crim R 369.
In R v BTP[9] a 15 year old intellectually disadvantaged offender was sentenced to five years’ imprisonment with a non-parole period of two and a half years on a count of unlawful and dangerous act manslaughter committed by stabbing the deceased with a kitchen knife. The nature and gravity of the offence was not dissimilar to that in R v PP and, not surprisingly, the judge considered that, in view of the seriousness of the offence, a sentence of three year’s imprisonment would not have been sufficient and hence that it was not open to him to make a Youth Justice Centre Order.
[9][2006] VSC 374.
R v Johns[10] a 19 year old offender was sentenced to six years’ imprisonment with a non-parole period of four years on a count of unlawful and dangerous act manslaughter committed by way of a martial arts kick to the head which caused the victim to fall to the ground and strike his head. There was no possibility of a Youth Training Centre Order in that case. The offender was skilled in martial arts and intentionally delivered a powerful unprovoked and unexpected martial arts kick to the victim’s head as he stood passively watching events occurring in a hotel car park. The offender also had prior convictions for offences of violence and had admitted committing another offence before the subject offence which was still to be dealt with.
[10][2003] VSC 415.
On the other hand, in R v Woodburn,[11] an 18 year old offender convicted of a count of unlawful and dangerous act manslaughter committed by stabbing while the offender was influenced by alcohol and without murderous intent, was sentenced to a Youth Training Centre Order. There are also two older cases in which offenders convicted of unlawful and dangerous act manslaughter were sentenced to Youth Training Centre Orders, in DPP v McLenahan[12] the Court of Criminal Appeal dismissed a Director’s appeal against a Youth Training Centre Order of two years and six months’ duration; and in DPP v Burns,[13] on a Director’s appeal against a sentence of being ordered to perform 400 hours community work, the Court of Criminal Appeal re-sentenced the respondent to a Youth Training Centre Order of three years’ duration.
[11][2002] VSC 72.
[12]VSCCCA, Unreported, 3 December 1985, albeit the maximum penalty was then 15 years.
[13]VSCCCA, Unreported, 17 November 1986.
To that may be added that, although as a sentencing judge I am bound to have regard to current sentencing practices,[14] I am not necessarily required to impose a sentence which is within the bounds set by previous cases. Each case is unique and, therefore, it is always possible that a sentence may properly rise above or fall below sentences imposed in other similar cases. In this case, given the nature and gravity of the offences of manslaughter committed by you, Sharmake Aidid and MA, your youth, your limited moral culpability, your exceptional character and antecedents, and what I assess to be your very high chances of complete rehabilitation, I consider that a sentence of three years’ imprisonment in each case would be within the range but that, in light of the pre-sentence reports and supporting psychological assessments to which I have referred, it is preferable to sentence each of you to a Community Justice Centre Order of the same duration.[15]
[14]R v Bangard (2005) 13 VR 146, 148[11] (Buchanan JA); R v Arney [2007] VSCA 126, [14].
[15]R v Mills [1998] 4 VR 235, 241; R v Schneider [2007] VSCA 103 [15]–[25].
Sentencing considerations – Common law assault
There are no sentencing statistics available for the offence of common law assault but in recent cases of affray, which in some respects are comparable, and for which the maximum penalty is the same, sentences imposed have varied between a sentence of imprisonment of six months, through a community based order of
twelve months’ duration[16] to a term of imprisonment of one year and six months.[17]
[16] DPP v Kosmidis [2008] VSCA 66.
[17] R v Lacey [2006] VSCA 4; see also R vRodden [2005] VSCA 24.
Counsel for you, Abdeweli Mohamed, submitted that in view of your good character, absence of prior convictions, genuine remorse, excellent prospects of rehabilitation and the likely impact of recording a conviction on your economic or social well-being or employment prospects in the professions, I should not record a conviction but rather release you pursuant to 7(1)(i) of the Sentencing Act 1991 on conditions comparable to the sort of adjourned undertaking provided for in Magistrates’ Court proceedings by s 83A of the Sentencing Act 1991.
The Crown opposed the idea, but it seems to me that there is force in the submission made on your behalf. Were it not for the deceased’s death, you would likely have been dealt with for assault in the Magistrates’ Court. If so, it is distinctly possible that a Magistrate would not have recorded a conviction. In the events which occurred, you were properly presented for trial in this court. But the jury having found that you were not responsible for the deceased’s death, your only offence is assault and you are to be dealt with on that basis.
I do not accept, however, that your offence should go unpunished. In my view, the requirements of denunciation, general deterrence and just punishment necessitate that, even if no conviction is to be recorded, you should undergo a 12 month community based order with a community service condition that you perform 250 hours unpaid community work over that period. I note that your counsel has indicated that you are prepared to comply with such an order.
Sentence
Abdeweli Mohamed, on the count of common law assault of which you have been found guilty, I sentence you, without recording a conviction, to a community based order of 12 months’ duration with a community service condition that you perform 250 hours unpaid community work over that period.
Sharmake Aidid, on the count of manslaughter of which you stand convicted, I sentence you to a Youth Justice Centre Order for a period of three years.
I declare that the number of days already served under the sentence I have imposed on you is 85 days, and I direct that the fact of the declaration and its details be entered in the records of the court.
MA, on the count of manslaughter of which you stand convicted, I sentence you to Youth Justice Centre Order for a period of three years.
I declare that the number of days already served under the sentence I have imposed on you is 70 days, and I direct that the fact of the declaration and its details be entered in the records of the court.
In the case of you, Sharmake Aidid, I shall make a further order pursuant to s 464ZF of the Crimes Act 1958 that you undergo a forensic procedure for the taking of a sample from the mouth. I shall do so because of the seriousness of the offence of which you have been convicted and because I am satisfied in all the circumstances that the making of the order is justified. I note that the making of the order was not opposed. I am however required to inform you that if, at the time a request is made for the taking of the sample, you do not consent to the sample being taken by way of mouth scraping under the supervision of an authorised member of the police force, the sample to be taken will be a blood sample and police may use reasonable force to enable that forensic procedure to be conducted.
In the case of you too, MA, I shall make a further order pursuant to s 464ZF of the Crimes Act 1958 that you undergo a forensic procedure for the taking of a sample from the mouth. Again I shall do so because of the seriousness of the offence of which you have been convicted and because I am satisfied in all the circumstances that the making of the order is justified and again I am required to warn you that you if do not consent to the taking of the mouth scraping under the supervision of an authorised member of the police force, the sample to be taken will be a blood sample and police may use reasonable force to enable that forensic procedure to be conducted. I note that the making of that order too was not opposed.
In your case, however, Abdeweli Mohamed, I am not persuaded that it is appropriate to order the retention of the sample taken from you on 7 December 2006. The making of such an order was opposed and I do not consider that the seriousness of your offence, when taken in conjunction with the personal circumstances which I have mentioned, and the fact that a conviction is not to be recorded, warrants an order of that kind.
Finally, I shall make an order for the disposal of the implements of crime pursuant to s 78(1) of the Confiscation Act 1997.
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