R v Salew
[1998] VSCA 141
•17 December 1998
SUPREME COURT OF VICTORIA
COURT OF APPEAL Not Restricted
No.111 of 1998
THE QUEEN
v
ALEMSEGED TEIKLU SALEW
---
JUDGES: PHILLIPS, C.J., ORMISTON & BATT, JJ.A. WHERE HELD: MELBOURNE DATES OF HEARING: 11 and 12 November 1998 DATE OF JUDGMENT: 17 December 1998 MEDIA NEUTRAL CITATION: [1998] VSCA 141
---
CRIMINAL LAW - Sentencing - Intentionally causing serious injury - Erroneous and incomplete factual findings - Frenzied knife attack on wife, but applicant was not the initial aggressor and was "provoked".
---
APPEARANCES: Counsel Solicitors For the Crown Ms C. M. Quin P. C. Wood, Solicitor for
Public ProsecutionsFor the Applicant Mr P. F. Tehan, Q.C and Andrew Papadimitropoulos Ms A. F. Graham
PHILLIPS, C.J.:
I have had the benefit of reading the judgment of Batt, J.A. in draft form. I concur in the conclusions His Honour has reached and I would subscribe to his reasons therefor.
ORMISTON, J. A.:
I have had the benefit of reading the judgment of Batt, JA. in draft form. For reasons he has stated I consider that the appeal should be allowed. I have had some doubt, however, as to what sentence should be substituted, in that this was a particularly vicious attack by the applicant. The Court has had little reliable evidence as to why the victim obtained the knife and how she threatened to use it. However, the circumstances of the applicant's attack seem significantly different from those upon which the learned judge sentenced him, so that I, with some hesitation, would agree with the sentence proposed by Batt, JA. It does not follow that in every case where the facts bear some resemblance to the present that the Court should characterise an accused's response of this kind as sufficiently appropriate to justify a lesser sentence.
BATT, J. A.:
On 16 April 1998 the abovenamed applicant, who is now 34 years of age, was presented in the County Court at Melbourne on a single count alleging that on 15 September 1997 he intentionally caused serious injury to his wife, being his second wife, contrary to s.16 of the Crimes Act 1958. On arraignment, he pleaded guilty. No prior convictions were alleged against him and indeed it was accepted by the Crown that he had no prior convictions either in Australia or in Ethiopia, the country in which he was born and grew to manhood. The maximum penalty for the offence of intentionally causing serious injury was increased with effect from 1 September 1997 to imprisonment for 20 years.
The prosecutor opened the facts of the offence as put by the Crown and tendered a victim impact statement by the complainant. His Honour then heard a plea in mitigation of penalty, in the course of which counsel called four witnesses and tendered a report by a forensic psychologist, Mr. Ian Joblin. The witnesses called were a social worker, the applicant's former (first) wife, a cousin of the applicant and a friend of the applicant.
On 29 April 1998 his Honour sentenced the applicant to be imprisoned for 7 years and fixed a non-parole period of 5 years. He declared that a period of 226 days spent in custody be reckoned as already served under the sentence.
By notice dated 6 May 1998 and filed 13 May 1998 the applicant seeks leave to appeal against sentence. By order of the Registrar of Criminal Appeals made on 4 November 1998 leave was granted to substitute five grounds of appeal for the one ground in the notice. It is necessary to set out only the first three of the substituted grounds. They read:
"1.
The Learned Sentencing Judge, having accepted that it would be unfair to proceed on any basis other than the version of events given by the witness Saba Salew, erred by limiting the relevance of that witness's evidence to 'a couple of contested features' of the case.
2.
The Learned Sentencing Judge, having accepted the Crown's concession that the witness Saba Salew was a witness of truth, erred in finding, contrary to that witness's evidence, that:
a)
the Applicant had asked his wife for money and this had led to the dispute which ended with the Applicant stabbing the victim;
b)
the 'white man' was leaving the victim's residence when the Applicant arrived in the afternoon, after which the Applicant went out for the evening, returning later just prior to the stabbing incident, and;
c)
that the incident did not occur in the heat of the moment upon the Applicant's discovery or belief that there had been another man with the victim on that afternoon."
"3.
The Learned Sentencing judge gave little or no weight to the events leading up to the stabbing of the victim by the Applicant, including:
a)
that the Applicant was engaged in a conversation with the victim about the man who had been at the premises on the Applicant's arrival when the victim approached the Applicant from behind with a knife and attempted to choke and stab him before the Applicant took hold of the knife and stabbed the victim in the manner described in the depositions."
I turn now to the background facts and the events of 15 September 1997. For reasons which will appear some detail is unavoidable. The applicant first came to Australia from Ethiopia in 1990 with his first wife, their two children and his daughter from another relationship, Saba Salew. In 1992 he returned to Ethiopia, where he met and formed a relationship with the complainant. After his return to Melbourne his first wife became aware of that relationship. That resulted in a breakdown of their marriage and their subsequent divorce. The applicant returned again to Ethiopia and married the complainant there in 1994. A child was born of this marriage in, it would appear, July 1995. He returned to Australia at some time before August 1996, leaving the complainant in Ethiopia while he made arrangements for her to be sponsored as a migrant to this country. In August 1996 the applicant was seriously injured in a car accident. As a result of his injuries he became somewhat irritable and short tempered, according to his counsel at the plea. He suffered a second, but less serious, car accident late in 1996. In January 1997 the complainant migrated to Australia.
After the complainant's arrival in Australia, the relationship between her and the applicant became difficult, and they argued continually. On the applicant's account, the complainant's attitude towards him changed. She declined to cook, wash and clean, as would be normal for a wife in Ethiopia, and went out alone at night. She was aggressive and abusive towards him. He admitted striking his wife once, in response to which the police were called, but he claimed that she had struck him frequently. On the complainant's account, on the other hand, the fighting related to the applicant's demands for the family allowance payments received by the complainant and led on the occasion mentioned to the police being called and her being taken to the Sunshine Hospital to be treated for facial injuries. Shortly after that incident the complainant separated from the applicant and went to stay with friends before moving to a flat in Footscray. The applicant subsequently found out where she was living and started visiting with the complainant's acquiescence. According to her, she acquiesced for the benefit of the children. But, she stated, conflict arose again, particularly when the applicant asked for money.
Although there was no doubt about the injuries which the applicant caused to the complainant when he stabbed her on 15 September 1997, there were conflicting accounts before the judge of the events on that day leading up to the stabbing and of the manner in which the stabbing itself occurred. This conflict goes to the grounds of appeal set out earlier. The complainant's account was contained in the statement taken from her by the police on 23 September 1997 and in her evidence in chief and in cross-examination given at the committal. The applicant's account was contained in tape-recorded interviews conducted at the Footscray police station on the morning of 16 September 1997. In addition, there was a third account, that of the applicant's daughter Saba Salew contained in a "VATE" interview conducted on 17 September 1997. Besides the transcript of the applicant's interviews, the Court was provided with a transcript of the VATE interview, which includes a record of Saba's facial and bodily movements depicted in the video recording. At the time of the offence Saba was living with her stepmother, the complainant. The sentencing judge was variously told by both counsel that at the time of the plea Saba was or would shortly be 10 years of age, and the summary before this Court states, as did Saba in her VATE interview, that at the time of her interview, some seven months earlier, she was aged 10. On the hearing of the application to this Court, however, Ms Graham, junior counsel for the applicant, stated that Saba, who she said was in Court, was now 13 years old and would be 14 in December, so that at the time of the offence she was 12, not 10. Mrs. Quin, counsel for the respondent, in her address said that she "presumed" that Ms Graham's instructions were correct. If, as his Honour was told, the applicant married his first wife in 1987, that presumption would seem to be justified, for the relationship which gave rise to the birth of Saba appears to have occurred before that marriage. To the extent that it may be necessary to do so, I am prepared to act on Mrs. Quin's virtual concession.
On the complainant's account, after finishing her English class at the Sunshine Language Centre at about 3.45 p.m. on 15 September 1997, she returned to her flat and found the applicant there with the children. They later had tea and sat and watched television. At about 11 o'clock the applicant asked the complainant for money and she said that she did not have any. (Before asking for money, the applicant had gone to the kitchen and closed the door.) An argument developed and the applicant hit the complainant on the face. She saw him take something from his pocket. She screamed and stood up, and then felt the applicant stab her to the face and body. She began bleeding. The applicant stabbed her repeatedly, at least six times, striking her to the back, shoulder, head, face and left eye. He was in a frenzy. She tried to protect herself by putting her hands up, but was unable to do so. She fell over a coffee table to the floor. The complainant sensed her children around her. She said that she saw them walk into the loungeroom and sit on a chair near their room. She saw her husband walk in and out of the flat three times. In her statement the applicant denied having a "white person" in the flat or taking a knife from the kitchen.
The applicant in his interview said that he had gone to the complainant's flat in the afternoon after attending university, had stayed there a while and had gone out again about 6 p.m. He passed time wandering around the Footscray market. Before he left, the complainant had required him to return to her his key to the flat, though he did not know why. When he returned from the market to the flat, which is on the first floor, he knocked on the door, but there was no answer. He sat waiting near the letter boxes of the flats and eventually saw a white man coming out of the complainant's flat. After he had gone, the applicant knocked upon the door again and, when the complainant opened it, confronted her about the man. She told him that the man was her boyfriend and that it was none of his business. The applicant became very angry and lost control. He did not know where he had got the knife and could not recall anything until he saw the complainant lying in front of him and the knife there. He thought at that time that he had killed her. He was aware that he had been stabbing her. The children were present when the complainant was lying on the floor, but he could not remember whether they had been present while he was stabbing her. He could not remember whether his intention was to kill her or simply to hit her. (The applicant did not say how he gained access to the flat and did not mention knocking at Saba's window, though a fingerprint may support Saba as to that.)
Saba in the VATE interview stated that she lived with the complainant (whom she called her mother) and brother. On the day in question she returned home from school and found a white man sitting in the loungeroom talking to her mother. She had not seen the man before. She ate her "lunch", watched television, went to her bedroom and played with her brother. She eventually went to bed and to sleep. She was woken by a knock on her bedroom window and saw that it was the applicant. She went to her bedroom door and saw the white person leave the house and her mother close the door. She then heard knocking. Her mother opened the door, saw that it was her father and immediately closed the door. But he broke the door and came inside. Her father and her mother sat down in the loungeroom. For some time they did not talk. But then she heard her father ask her mother who the white person was and also why she was "standing like that" to him, her father. They said other things that she could not hear. Saba then saw her mother go into the kitchen, take a knife from the drawer, put it in her pocket and return to the loungeroom. Her mother seized her father around the throat with one hand (or it may initially have been both hands), saying that she did not want him and did not love him. In her other hand, she held the knife to his neck. Her father grabbed the hand holding the knife, took the knife and pushed her mother away. Her mother fell backwards and her father started repeatedly striking her with the knife. There was a lot of blood on her mother. Saba and her brother were screaming.
At 11.55 p.m. an officer at the Footscray police station received a telephone call from a neighbour of the complainant, who said, "My neighbour from flat No.4 knocked on my door and said ', You had better call the police, I've killed my wife'". The police attended the scene shortly thereafter and arrested the applicant.
When ambulance officers attended the scene at 12.06 a.m. they found the complainant on her stomach with a quantity of blood on her person and on the floor around her. Her pulse - the summary says - "blood pressure" was not detectable and they began using life-saving equipment. Medical examination of the complainant revealed the following wounds: (1) a penetrating wound over the left eyebrow approximately 2 cm in length and of unknown depth, with bruising below the eye and the eye itself proptosed with a dilated, unreactive, irregular pupil and subconjunctival haemorrhage; (2) and (3) two penetrating wounds to the right cheek, both approximately 1.5 cm by 0.5 cm and of an unknown depth; (4) a superficial laceration to the nose; (5) a penetrating wound of approximately 2 cm by 0.5 cm and of unknown depth over the right loin with the surrounding subcutaneous haematoma; (6) a penetrating wound over the left deltoid approximately 2 cm by 2 cm and of unknown depth; and (7+) multiple superficial lacerations to the left hand. As a result of wound (1) the complainant has lost the sight of her left eye and may have to have it removed.
| 15 | In the course of his sentencing remarks, after referring to the complainant's injuries and the applicant's background and family, the judge, speaking of Saba, said: |
"At the committal proceedings she gave evidence against you. There was some conflict between her evidence and that of your second wife. The Crown accepts that there had been no opportunity for you to persuade your eldest daughter to give evidence that was more favourable than that being given by the victim. Accordingly, it is accepted that for purposes of sentencing I should proceed on the assumption that the version given by your daughter on a couple of contested features of this case should be accepted. This does not involve any conclusion that your wife was misrepresenting the position. It is merely a recognition that on the material before me it would be unfair to proceed on any basis other than that version given by your elder child.
For reasons that I will give in a moment, in my opinion that makes very little difference in this case. Nevertheless, in view of the way the matter was put to me, I think it appropriate that I express a conclusion on an appropriate approach."
Then, after referring to the applicant's marriages and children, his Honour set out the complainant's account of the history of their marriage in Australia and of the events of 15 September 1997. He continued:
"The conflict between that version and the one that you accept was the subject of evidence by your daughter, Saba, when interviewed by the police. You said that a white man had been at the flat when you arrived. The current version is that this had been the situation when you arrived on that afternoon, that is, a white man was leaving as you had arrived. You say you had gone out during the evening, but had then come back. As I understand it, the presence of the white man was an issue between you and your wife.
You also say that it was your wife who had obtained the knife from the kitchen and that it was initially produced and used by her. In cross- examination your daughter, Saba, said that your wife went to the kitchen and got the knife. She put the knife in her jacket. Saba later said that you took the knife from her, but only after you had been cut by its use. There is some independent evidence in support of that. After the incident you were discovered to have an injury with a knife caused laceration to the area of the right mandible.
It follows from all these circumstances that I am required to sentence you upon the basis that, so far as the incident, itself, was concerned, you were emotionally overwrought, probably by reason of the state of your marriage and your belief that there had been another man with your wife on that afternoon. However, it appears that the incident did not occur in the heat of the moment upon discovery of that situation. It is clear that the event occurred much later, probably closer to midnight. You had asked your wife for money and this led to the dispute and ended in the way that I have described."
His Honour later said that it appeared to him from the material as a whole, particularly that emerging from the report of Mr. Joblin, that the applicant's anguish was more deep-seated than referable to a belief that his wife had some sort of relationship with another man. He referred to the complainant's alleged change of attitude to the applicant since her arrival in Australia. Without necessarily accepting that "scenario", his Honour stated that he did proceed on the basis that the applicant's degree of anguish was magnified by the belief that the complainant wished to sever the relationship once her object of emigrating to Australia had been achieved. Later still, speaking of remorse, the judge said, "There is no doubt that you are extremely remorseful for what you see as a provoked reaction, but would concede was nevertheless an over-reaction on your part."
Ms Graham commenced her oral submissions by reminding the Court of the principle stated in the joint judgment in R. v. Storey [1998] 1 V.R. 359 at 371 that:
"... the judge may not take facts into account in a way that is adverse to the interests of the accused unless those facts have been established beyond reasonable doubt but if there are circumstances, which the judge proposes to take into account in favour of the accused, it is enough if those circumstances are proved on the balance of probabilities."
This passage had been drawn to the attention of the sentencing judge by the prosecutor.
The prosecutor referred the judge to the material from Saba. He said that the Crown accepted that on the material the applicant had no direct access to his daughter to tell her what to say. (In her statement, which was taken by the police after Saba had been interviewed, the complainant made the inherently unlikely allegation that, after the attack and before he had the police called, she heard the applicant tell Saba to say to the police that a white man had been with her mother and that her mother had obtained and used the knife. Saba had said that her father had said nothing about what happened.) He pointed out that the evidence of the VATE interview was not tested at committal (for a plea to the present offence had been accepted before Saba was called to give evidence). He then took the judge to three particular portions of the VATE interview. They were, however, quite lengthy and covered the critical areas of dispute, namely, the presence of a "white man", when he was seen by the applicant and the events from very shortly before the stabbing to and including the stabbing. Indeed, the third passage was the interviewer's detailed summary of Saba's answers relating to the events of the day in question, which, subject to at least one correction, the child expressly accepted. The prosecutor pointed out that neither the complainant nor the applicant stated that the complainant was the first to have the knife or that she got it from the kitchen, but that the child did. The prosecutor concluded his references to Saba's statements by saying, presumably with reference to the committal hearing, "The Crown was going to offer the child as a witness of truth, because we had no cause to do otherwise." Having regard to the lengthy and all-embracing passages in the VATE interview to which the prosecutor referred, it could not, in my view, be suggested that the Crown was putting Saba forward as a witness of truth on only one or two points. Counsel then appearing for the applicant asked his Honour to take into account the Crown view as to Saba being a witness of truth and, with justification, I should have thought, the consonance and correlation of her observations with the account provided to the police by the applicant.
His Honour was, of course, not bound by the attitude of the Crown. But significant weight should have been given to the attitude of the Crown and, to find facts more adverse to the applicant than the facts in Saba's account, the judge had to be able to be satisfied of them beyond reasonable doubt: R. v. Storey at 370-371.
In my view, for the reasons which follow, ground 2 in each of its paragraphs is made out and, to that extent at least, ground 1 is also made out. It is convenient to take first para.(b) of ground 2, concerning the finding that the "white man" was leaving the complainant's residence when the applicant arrived in the afternoon, after which the applicant went out for the evening, returning later just prior to the stabbing incident. In her statement to the police and (this Court was told) in her answers in cross-examination at the committal hearing the complainant denied the presence of a white man at any time on 15 September. Accordingly, as the Chief Justice observed during argument, the complainant's evidence could not establish that a white man was, to the applicant's observation, present at the flat but only during the afternoon. Saba's interview, if accepted, clearly established that a white man was present at the flat continuously from about 4 p.m. until shortly before the applicant entered the flat in the evening after waking her. His Honour's statement as to "the current version" of what the applicant said, namely, "that this [scil, that a white man had been at the flat] had been the situation when you arrived on that afternoon, that is, a white man was leaving as you had arrived," is not supported even by the applicant's answers in his interviews. That statement seems to have been made as a finding of fact. Certainly, his Honour later refers to the applicant's belief that another man was there in the afternoon as an established fact. Thus, a finding that, although a white man had been present in the afternoon, he had left during the afternoon and not returned is unsupported by any evidence. Mrs. Quin indeed accepted that his Honour erred in finding that a white man, to the observation of the applicant, left in the afternoon and that in the evening only the applicant returned. For the foregoing reasons I consider that error on the part of the sentencing judge has been established in his finding (necessarily beyond reasonable doubt), adversely to the applicant and contrary to the VATE statement of Saba, that the "white man" was seen by the applicant at the complainant's flat in the afternoon and then left the premises for good, so that "it appears that the incident did not occur in the heat of the moment upon discovery of that situation". (I am conscious that, in the light of Saba's statement that a white man was present in the afternoon and the applicant's statement that he visited the flat in the afternoon and left about 6 p.m., it may be said to be strange that he did not see the white man. But the applicant did say that no- one was at the flat and Saba did not say that the applicant was there in the afternoon. The seeming anomaly may be explicable on timing differences or error.)
I take next para.(a) of ground 2, which concerns the finding that the applicant had asked his wife for money and this had led to the dispute which ended with the applicant stabbing her. This finding is supported by the complainant's evidence, but it is inconsistent with the applicant's answers. It is also, in my view, notwithstanding that Saba could not hear all that was said, inconsistent with the sequence of events revealed by Saba's VATE interview. The finding, as appears from the paragraph in which it is contained, proceeded from the erroneous finding that it was much earlier, that is, in the afternoon, that the applicant had seen the white man. It is true, as Mrs. Quin pointed out, that, since the stabbing occurred close to midnight and since the approximate time when the applicant gained entry to the flat in the evening did not appear, it was open to find that some interval occurred between the applicant's sighting of the white man and the stabbing incident. (Although Saba was woken from sleep, it may be thought unlikely that the applicant wandered around the Footscray market till close to midnight.) But the finding is inconsistent with the complainant's saying, in the context related by Saba, that she did not want the applicant and did not love him, and scarcely consistent with the complainant's obtaining the knife from the kitchen, a matter yet to be mentioned. In summary, in my view, it was not open to the judge to find beyond reasonable doubt that a request by the applicant of his wife for money had led to the dispute which ended with her being stabbed.
It is convenient to take next a matter which, although not the subject of ground 2, was fully debated before this Court and is in fact referred to in a slightly different context in para.(a) of ground 3. This is the question who obtained the knife and produced it. His Honour, after setting out the complainant's account, did, in the second paragraph of the second passage I have set out from his sentencing remarks, state that according to the applicant it was the complainant who had obtained the knife from the kitchen and initially produced and used it, and did refer to Saba's statements to the same effect. His Honour went on also to say that there was some independent evidence in support of that account, which, as I understand it, is a reference to the medical evidence of the then fresh laceration to the applicant's right mandible, to which his Honour next referred. His Honour's sentence referring to independent evidence in support suggests that he accepted the statements of Saba about the knife. But, although the next paragraph of the sentencing remarks begins by referring to "all these circumstances", the terms of the paragraph are, in my view, quite inconsistent with the complainant's having produced the knife and thus been the aggressor. In my opinion, the sentencing judge erred in failing to find in accordance with Saba's VATE statements (if he did so fail), or at any rate in failing to sentence on the basis, that it was the complainant who obtained the knife and produced and used it against the neck of the applicant, and was thus the initial aggressor. That is not mentioned as part of "the basis" on which the judge stated he was required to sentence the applicant. If his Honour was sentencing on the basis that the applicant was not the aggressor, one would expect that to be expressly stated.
That brings me to para.(c) of ground 2, which concerns the finding that the incident did not occur in the heat of the moment upon the applicant's discovery or belief that there had been another man with the complainant in the afternoon. (The paragraph telescopes two sentences of the reasons.) It follows from what I have said in relation to the knife and in relation to the other paragraphs of ground 2 that this finding also is erroneous. His Honour's later reference to "what you see as a provoked reaction", belittles, as Ms Graham submitted, or dismisses, the so-called provocation arising from the discovery that a white man had been present earlier in the evening and from the use of the knife (as to which reference may be made to The Queen v. Howe (1958) 100 C.L.R. 448 at 463).
Indeed, I consider that his Honour erred in failing to sentence on the basis of what I have referred to as so-called provocation, which is a mitigatory factor: R. v. Okutgen (1982) 8 A.Crim.R. 262 at 264 and 266 and R. v. Pearce (1983) 9 A.Crim.R. 146 at 150. It follows that ground 3 is made out, but only so far as it refers to "no weight."
Mrs. Quin reminded the Court of the remarks of Wells, J. in R. v. Reiner (1974) 8 S.A.S.R. 102 at 114-115, approved the New South Wales Court of Criminal Appeal in R. v. Holyoak (1995) 82 A.Crim.R. 502 at 511-512 and 516, that it is "no part of an appeal court's function to search, with a hypercritical eye, for what may, upon one arguable construction, be error or misunderstanding". I strongly endorse that view. But, particularly when his Honour had said that it was accepted that for purposes of sentencing he should proceed on the assumption that the version given by Saba on a couple of contested features of the case should be accepted, I cannot avoid the conclusion that his Honour erred in not finding or sentencing in accordance with Saba's statements about the white man (acknowledged by his Honour to be an issue) and the knife and in finding that a request by the applicant for money led to the dispute in which the complainant was stabbed. Nor, as a result, can I avoid the conclusion that his Honour erred in failing to sentence on the basis that the applicant was "provoked". Moreover, I think that it may fairly be said that on some issues, such as who obtained the knife, his Honour left the listener or reader in doubt as to his findings. I draw the foregoing conclusions more confidently because there are other misstatements in the sentencing remarks. For instance, it is incorrect that Saba gave evidence at the committal proceedings or was cross-examined, and the attribution to the applicant of the "current version" stated by his Honour is incorrect. (There are some other statements in the sentencing remarks which seem, by deduction from other facts, incorrect, such as the statement that the fourth child of the applicant was born in Australia; but I disregard them because they accord with statements in the summary or with what his Honour was told.)
Specific and material errors having been established, the sentencing discretion falls to be re-exercised. It cannot be, and was not, contested that this was a serious example of a serious crime. The stab wounds were inflicted in a frenzied and vicious attack with a dangerous weapon, blinding the victim in one eye and nearly killing her. But there are a number of mitigatory factors. Amongst those are that the applicant was not the initial aggressor and that, even though it is not clear how soon the stabbing occurred after the applicant's discovery of the white man, he was, in the non-technical sense, provoked. As I have explained, those two factors were not, but should have been, taken into account by his Honour. They change the complexion of the applicant's offence significantly. There are several other mitigatory factors which were taken into account by his Honour. I propose merely to list them without reference to the details or supporting evidence, which can be found in his Honour's sentencing remarks. The attack was not pre-meditated, as was made apparent, if not already so, by the response of the applicant when arraigned, which to my mind has a genuine ring about it. The applicant was labouring under emotional stress (Neal v. The Queen (1982) 149 C.L.R. 305 at 324). The applicant immediately had the police called, co-operated with them, and, whilst denying attempting to murder the complainant, pleaded guilty to the substituted charge early. He was remorseful. He had no prior convictions here or in Ethiopia and the attack was out of character. Finally, any period of incarceration will bear more heavily upon him than upon other prisoners by reason of his cultural isolation and linguistic difficulties. In all the circumstances I consider that a sentence of imprisonment for a term of 6 years with a non-parole period of 3 years 9 months is appropriate to the applicant's criminality and personal factors. I would therefore propose that he be re-sentenced accordingly.
4
0
0