R v Musa and Wubneh
[2014] VSC 15
•5 February 2014
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2013 0179
S CR 2013 0180
| THE QUEEN |
| v |
| DEYAR MUSA & SHEWIT WUBNEH |
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JUDGE: | DIXON J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 December 2013 and 30 January 2014 | |
DATE OF SENTENCE: | 5 February 2014 | |
CASE MAY BE CITED AS: | R v Musa & Wubneh | |
MEDIUM NEUTRAL CITATION: | [2014] VSC 15 | |
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CRIMINAL LAW — Sentence — Affray and common law assault — Victim killed — Early plea of guilty — Remorse — No previous convictions — Youthful offenders — Good prospects of rehabilitation — Absence of intention to cause injury — Cooperation — Undertaking to give evidence against co-offender — Co-offender charged with murder — Community Corrections orders made.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr M Rochford SC | Mr C Hyland, Solicitor for Public Prosecutions |
For Mr Musa | Mr J Taafe | |
| For Ms Wubneh | Mr G Georgiou SC with Ms B Franjic | Galbally & O’Bryan |
HIS HONOUR:
Deyar Musa and Shewit Wubneh, you have each pleaded guilty to one charge of affray and one charge of common law assault. Each offence carries a maximum penalty of five years’ imprisonment.
Circumstances of offending
Around 3.30 am on Sunday 17 March 2013, Shaun Wright and two of his friends were walking in the streets of Fitzroy. They had consumed alcohol at a number of licensed premises in Fitzroy and Collingwood. You had also been at licensed premises in Brunswick Street where you, Ms Wubneh, had consumed alcohol. You had travelled to Fitzroy in a Ford sedan, a hired car. You, Mr Musa, were the designated driver for the evening.
For reasons unknown, Mr Wright threw a piece of wood towards the Ford and contact was made. There was no evidence of damage to the car or that it was uninsured. However, wishing to obtain Mr Wright’s details, you, Ms Wubneh, along with others approached his group in the street. Mr Wright ran off. The night could have ended there, but as you drove from Fitzroy, Mr Wright was spotted near the Tankerville Arms Hotel, in Johnson Street heading east. You, Mr Musa, still wanted Mr Wright’s identification particulars and you stopped the car and set off after him. Outside 104 Johnson Street, you caught up with him. The confrontation was captured on CCTV, and I have watched it. The confrontation lasted about 75 seconds in total.
Mr Musa, you took hold of Mr Wright by his arm or clothing and exchanged words with him. You were, presumably, asking Mr Wright for his identification details. He can be seen backing away from you in a non-threatening way. What was being said is not recorded, but Mr Wright’s body language appears submissive. I also note that at this stage your physical contact with Mr Wright is aggressive but not violent.
After about 20 seconds, another offender (who is not before the court today) joins in your conversation with Mr Wright. For the next 35 seconds, during this conversation, Mr Wright can be seen to be backing away from you, Mr Musa, and attempting to release himself from your grip. Next, you Ms Wubneh arrived on the scene. Before you make any contact with Mr Wright a fourth offender runs from behind you to join the confrontation. This person, whom I shall refer to as Mr Issa, appears to push past you Ms Wubneh and immediately assaults Mr Wright.
During the final 20 seconds of the confrontation, when Mr Issa is involved, Mr Wright is assaulted by this offender and by each of you. You Mr Musa moved beyond simply grabbing Mr Wright by his arm or his clothes and you throw a punch or two that make contact with Mr Wright’s body. You Ms Wubneh moved in beside Mr Issa and kicked Mr Wright’s lower body with your knee or lower leg some two or three times before moving away and picking up an umbrella on the street that you swung towards Mr Wright making contact with his body. This physical confrontation was unlawful fighting and an affray was then taking place.
The violence of the confrontation of each of you with Mr Wright escalated with the arrival of Mr Issa, who is accused of the murder of Mr Wright. Unbeknown to each of you, Mr Issa had part of a glass beer bottle in his hand having just smashed the bottle as he approached. Mr Issa struck Mr Wright a number of times to the neck and torso region with the broken bottle. Mr Wright suffered immediate and significant bleeding from his neck wound.
When you each observed Mr Wright was bleeding, you fled from the scene. Mr Wright can be seen attempting to use his mobile phone immediately after you fled. He then collapsed onto the front steps of 104 Johnson Street. The operator of a passing street cleaning vehicle observed Mr Wright in distress and called emergency services, who arrived promptly. Shortly after, Mr Wright died. Mr Issa is accused of the murder of Mr Wright.
A post-mortem examination identified four sharp force injuries to the right neck region and one sharp force injury to the right clavicle region. A further sharp force injury was observed anterior to the right shoulder and a number of other injuries to the head region. The cause of death was a stab injury to the neck.
At no stage during the affray and the assault did Mr Wright offer physical resistance. His body language appears submissive and he appears to be backing away from the confrontation. It is not the Crown case that any of his injuries were caused by either of you. The assaults, by punching, and by kicking and the use of the umbrella, to which you have each respectively pleaded guilty did not appear to injure Mr Wright.
The following day you Mr Musa were arrested by police and interviewed. On 20 March 2013 you Ms Wubneh attended at the St Kilda Road Police Complex and you were arrested after being interviewed by police.
I accept that the role that each of you played within the affray was low level violence compared with Mr Issa’s alleged behaviour. Without his intervention, the incident may have resolved without any injury to Mr Wright and that would also have been a far better outcome for you. The CCTV video shows that you each became more physically aggressive towards Mr Wright once Mr Issa joined in the affray.
I accept that each of you neither intended, nor caused, Mr Wright’s death, but you both participated in a violent disturbance of the peace, an affray. Street fighting must be deterred. An affray carries with it an inherent danger of injury to persons or property or both. An affray can provide the opportunity for crowd psychology, mob behaviour, to determine the outcome of a confrontation. That is what occurred in this case. The unexpected and unintended participation of Mr Issa in the confrontation when he had no apparent interest in the reasons for it and was not known to either you or Mr Wright, demonstrates that danger. The confrontation that you initiated did rapidly escalate out of your control and it resulted in the senseless death of a young man for failing to give you his particulars in relation to an incident where a hire car was not damaged.
Your offending is a serious example of an affray. The community abhors street violence and it is necessary that your punishment should serve to deter others from similar behaviour. The court must, and I do, express the community’s abhorrence of such street violence, denouncing your behaviour as inappropriate and intolerable.
Victim Impact Statements
Mr Wright lost his life. Shortly after you left he bled to death in the street. His death has in turn substantially affected others. The grief and suffering of Mr Wright’s immediate family was eloquently expressed by his mother and sister in their victim impact statements. It is, of course, Mr Wright’s tragic death that has traumatised them rather than your confrontation of him to obtain his particulars. Yet, Mrs Wright is entitled, for the reasons I have explained, to believe, as she does, that if you had not acted in the way that you did that morning, Mr Wright may not have been killed.
Assessment of gravity of offending
Responsibility for the violence that resulted in Mr Wright’s death, and particularly Mr Issa’s use of a weapon, are not legally attributed by the prosecution to your actions. I accept that your roles within the confrontation were at a significantly lower level than is alleged against Mr Issa. I am satisfied that your offending can be classified as spontaneous, rash and unplanned. Although you Mr Musa instigated the confrontation, you did not know Mr Issa, or that he would join in, or that he was armed with a weapon. I accept that it was Mr Issa who escalated the confrontation from verbal to physical.
I am satisfied, from my observations of the manner of your assault upon Mr Wright evident from the CCTV video, that you did not intend to cause him injury and that you each withdrew from assaulting him when you realised that he was bleeding profusely. I accept that you were surprised and somewhat shocked to see the consequences for Mr Wright of the attack on him by Mr Issa.
Why did you get involved in this confrontation as you did? For each of you, your counsel has suggested that your conduct on that night was out of character. In due course I will say more about your characters and why I accept that you were responsible young adults who have surprised and shocked all who know you by your behaviour. You, Mr Musa, had not been drinking. There is, at least within the context of a confrontation, a degree of restraint evident in your actions that is consistent with sobriety. Pressing your desire to obtain Mr Wright’s identity particulars for an insurance claim for an undamaged hire car was clearly an error of judgment. Your conduct appears to stem from immaturity and poor judgment. The pointless and tragic loss of life that followed was so easily avoidable.
You Ms Wubneh were significantly intoxicated, which possibly explains your greater readiness, which is evident in the video when compared with Mr Musa, to assault Mr Wright. The evidence before me suggests that you do not often drink, let alone to excess, and I accept that you may not have been fully conscious of your uninhibited state. Your immaturity and poor judgment prevailed when you were in that condition.
I propose to say a little more about the personal circumstances of each of you but in assessing the gravity of your offending I will take the following matters into account in your favour. I am satisfied that your behaviour was out of character. I also accept that your offending was unplanned and spontaneous and that you immediately withdrew on realising that Mr Wright was bleeding profusely. The assaults you inflicted did not cause injury and the injuries that caused Mr Wright to die were neither inflicted nor anticipated by you.
Cooperation
Each of you has agreed to cooperate with the Director of Public Prosecutions in the prosecution of Mr Issa by giving evidence for the Crown if called to do so. To that end, each of you has provided to police a statement that you did not strike Mr Wright with a broken beer bottle or any similar object which could have caused the injuries that led to his death. The learned Crown Prosecutor informs me that your statements will assist the Crown in the presentation of its case against Mr Issa and that your evidence will be called at his trial. You have each confirmed on oath that your statements are true and correct and you have undertaken to assist the Crown in this way. I accept that your undertaking to assist in that prosecution demonstrates a responsible attitude to your offending. Your undertaking, along with other evidence that I will come to, demonstrates that you are remorseful for your conduct and reinforces the prospect of your successful rehabilitation.
I propose to impose a less severe sentence than would otherwise have been imposed in the circumstances and I will note in the Court records the fact that your undertaking was given and its details. You must understand that should you fail to honour this undertaking in due course, you may be liable to be re-sentenced by the Court of Appeal. I will take your co-operation into account in mitigation of the appropriate punishment but the discount I give for this reason alone will not be substantial. This is not a case where the prosecution being assisted is wholly dependent on your assistance or one where you are placing yourselves at grave risk by your cooperation.
Mr Musa’s personal circumstances
Turning to your personal circumstances Mr Musa, I received a report from a psychologist Ms Lechner and a number of character references were tendered.
Your parents arrived in Australia as refugees from Eritrea in 1987. You come from a stable family and you have done well at school and you are now part-way towards achieving a university qualification. You have a good history of employment supporting your studies.
At only 20 years of age at the time of your offending, I consider you to be a youthful offender and your rehabilitation will be a primary purpose of the sentence that I will impose upon you. You have not been in trouble with the police before or since this incident.
Your character witnesses were surprised to learn that you were involved in a confrontation. They describe your usual demeanour as reserved and tempered. One character witness described you as a sensitive and reliable young man with a most engaging personality. He described your character as emotionally mature and stable. Your character witnesses describe you as a very active member of the Eritrean youth community, respected by your age group and willing to volunteer in community activity.
Ms Lechner diagnosed you as troubled by low mood since your involvement in this incident. She states that you show a moderate level of depression and would be assisted by short term counselling, particularly in coming to terms with Mr Wright’s death. Her assessment, which I accept, is that you present a very low risk of re-offending, particularly by violent behaviour and that your rehabilitation prospects are excellent. She assessed your conduct that evening as totally out of character with your usual functioning. She records that you have expressed significant guilt, remorse and shame for your conduct. Further, you expressed to Ms Lechner empathy for Mr Wright’s family and a deeply felt regret for your behaviour. You presented as distressed that your own sense of panic overrode your decision not to assist Mr Wright.
You also gave evidence to the court in the presence of Mr Wright’s family that you understood the severity of what has transpired and take full responsibility for your actions on the night. You expressed your deepest condolences to the Wright family, regretting the unfortunate but unintended outcome.
I accept Mr Musa that you are genuinely remorseful for your conduct and that you have expressed this remorse from the outset. I take into account that you pleaded guilty at the first available opportunity and that you are willing to assist the prosecution by giving evidence against Mr Issa.
Ms Wubneh’s personal circumstances
Ms Wubneh, you too, were 20 years old at the time of offending and you have not been in trouble with the police before or since this incident. I propose to sentence you as a youthful offender with your rehabilitation, rather than general deterrence, being a primary object of the sentence that I will impose.
Your parents are Ethiopian refugees arriving in Australia in 1991. You were born the following year. Your parents separated when you were five years old and you have, since that time lived with your mother. You have a very close relationship with both parents and with your father’s second wife and your three half siblings.
You gained your VCE in 2001 and since the age of 16 have been consistently in paid employment. You are currently working at a hospital in the housekeeping and food services department and studying a pathology assistant’s course. You plan to study social science at Deakin University. You are multi-lingual. Your willingness to use your multi-lingual skills to help members of your community is noted.
I accept that you are genuinely remorseful for your conduct and that you have expressed this remorse from the outset. I take into account that you pleaded guilty at the first available opportunity and that you too are willing to assist the prosecution by giving evidence against Mr Issa.
Your remorse, and the shame that you feel over your conduct, is noted in your character references and in psychological assessments to which I will return.
I am satisfied that the prospects for your rehabilitation are excellent. You have demonstrated a strong work ethic throughout your education and employment. You belong to a strong moral family and you continue to enjoy their support. You have significant support from friends, work colleagues and other members of your community. You are above average intelligence.
You have experienced heightened anxiety and ongoing depressive symptoms as residual impacts to your exposure to the trauma of Mr Wright’s death. Although you have been treated for these symptoms you continue to manifest ongoing anxiety and depression. No doubt facing this Court to answer for your behaviour also contributes to your mental state.
It is significant that you have agreed to assist in the prosecution of Mr Issa as I have already described and, more importantly, that you were prepared to express, from the witness box to the court and to Mr Wright’s family that you feel deeply sorry and very ashamed of your actions.
I accept that you rarely drink alcohol to excess and that, in this respect, the night in question was an exception. It is likely that your extremely poor judgment that night, which was out of character, can be attributed to a combination of immaturity and intoxication.
You have consulted two psychologists and a psychiatrist and I accept the statements in their reports that there is a very low risk that you will re-offend.
To support those assessments of your previous good character and positive family, educational and work history, your counsel tendered 16 character references and called evidence before me from two of those referees. I am satisfied that you had justly earned a level of respect within your community such that everyone who knows you has been shocked, even disbelieving, that you were capable of a lapse of judgment that resulted in your behaviour on that night. I accept that your personal response to the consequences of your conduct has caused you distress and suffering requiring ongoing treatment. It is to your credit that you have sought out and continued with such treatment.
Conclusion
My duty is to impose a sentence that punishes each of you for your offending to an extent and in a manner which is just in all of the circumstances. Having explained to you both in some detail the features of your offending that I take into account in assessing its gravity and the personal matters of character and circumstance that I take into account in mitigation, I will summarise my approach. It is necessary that others be deterred from engaging in an affray and assaulting others on our streets. The sentence must manifest the court’s denunciation of such conduct.
On the other hand your rehabilitation is a significant purpose to be achieved by this sentence. In addition to your youth, personal circumstances, background, history and your excellent prospects for rehabilitation, I specifically take into account in your favour your early plea of guilty, your expressions of remorse and your undertaking to assist the Crown in the prosecution of Mr Issa.
Most commonly, conduct that results in a death leads to a jail sentence. Each of your counsel urged upon me that I not send you to jail as the sentencing objectives could be achieved by the imposition of a community-based order requiring you to perform unpaid community work. Your counsel urged such a sentence and the Crown accepts that such a sentence is within the proper range. I propose to accede to their submissions. You have each been assessed and considered suitable for a community corrections order. In each case the assessment has also recommended treatment and rehabilitation in the form of mental health assessments, which I consider appropriate.
Stand up please.
On each charge of affray and assault, and acting pursuant to s 40 of the Sentencing Act 1991, I convict each of you and I will order that you be placed on a Community Corrections Order for a period of one year commencing today.
The order will be subject to nine conditions. The first seven conditions are imposed by force of the Sentencing Act 1991 and they are that –
(a) you must not commit, whether in or outside Victoria, during the period of the order, an offence punishable by imprisonment;
(b) you must comply with any obligation or requirement prescribed by the regulations;
(c) you must report to, and receive visits from, the Secretary of the Department of Justice or her nominee during the period of the order;
(d) you must report to the community corrections centre specified in the order, which will be Sunshine Community Correctional Services, within 2 clear working days after the order coming into force;
(e) you must notify the Secretary of any change of address or employment within 2 clear working days after the change;
(f) you must not leave Victoria except with the permission, either generally or in relation to a particular case, of the Secretary;
(g) you must comply with any direction given by the Secretary that is necessary for the Secretary to give to ensure that you comply with the order.
The remaining conditions, which I impose, are these –
(a) You must complete any mental health assessment or treatment, including psychological or psychiatric treatment as is directed by the Secretary;
(b)
You must complete, within 6 months of the commencement of the Order,
100 hours of unpaid community work.
This order may be varied by application to the court while the order is still in force and its operation may, in exceptional circumstances including your unfitness through illness, be suspended by the Secretary.
This order can only be made if you consent to it, and before I ask you whether you consent to the order being made, I ask you, do you understand –
(a) the purpose and effect of the proposed Community Corrections order; and
(b) the consequences that may follow if you fail without reasonable excuse to comply with the proposed order; and
(c) the manner in which the proposed order may be varied.
Before you answer I propose to hand a draft of the Community Corrections Order to your counsel and permit your counsel to approach the dock to confirm whether or not you consent.
Finally, I announce that pursuant to s 6AAA of the Sentencing Act, I declare that the sentence I would have imposed, but for your plea of guilty, would have been
3 months' imprisonment on the charge of affray and 7 days, concurrent, on the charge of assault.
Madam Associate, would you hand out the draft Community Corrections Orders? There are four copies of those orders and if your clients consent to them if you could have each copy signed?
MR GEORGIOU: Yes, Your Honour. May I approach our client, Your Honour?
HIS HONOUR: Yes, you may.
Do you Mr Musa understand the purpose and effect of the order, the consequences that may follow if you do not comply with it and the manner in which it may be varied?
OFFENDER MUSA: Yes.
HIS HONOUR: And do you consent to the making of this order?
OFFENDER MUSA: Yes.
HIS HONOUR: Do you Ms Wubneh understand the purpose and effect of this order, the consequences that may follow if you fail to comply with it and the manner in which it may be varied?
OFFENDER WUBNEH: Yes, I do.
HIS HONOUR: And do you consent to me making this order?
OFFENDER WUBNEH: Yes.
HIS HONOUR: Very well, I have made those orders in the terms that I have already pronounced and I return the signed copies of them. Are there any other matters to be dealt with?
MR GEORGIOU: No thank you, Your Honour.
HIS HONOUR: Yes. Thank you, you are both free to step down from the dock and we will adjourn the court thank you, Mr Thomson.
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