R v Tomas Getachew
[2013] VCC 881
•19 July 2013
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-12-02399, CR-12-02398 & CR-13-01356
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TOMAS GETACHEW |
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JUDGE: | HIS HONOUR JUDGE PUNSHON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18 and 19 July 2013 | |
DATE OF SENTENCE: | 19 July 2013 | |
CASE MAY BE CITED AS: | R v Tomas Getachew | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 881 | |
REASONS FOR SENTENCE
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Subject: Indecent assault; common law assault; breach of reporting conditions.
Catchwords:
Legislation Cited:
Cases Cited:
Sentence: Total effective sentence of 12 months with 6 month non-parole period.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms G. Coghlan | OPP |
| For the Accused | Mr M. Page | Leanne Warren and Assoc. |
HIS HONOUR:
1 Tomas Getachew last Monday, 15 July, you faced trial on an indictment containing 4 charges. After pre-trial discussion and a successful application for separate trials two indictments, one containing a single charge of indecent assault and the other a single charge of common law assault were filed over.
2 The indictment alleging indecent assault proceeded to trial and you were found guilty by a jury on Wednesday 17 July.
3 The trial on the charge of common law assault was due to begin on Thursday 18 July but before empanelment you pleaded guilty.
4 You also pleaded guilty to another indictment containing a charge of failing to comply with reporting conditions under the Sex Offenders Registration Act 2004.
5 The prosecutor, Ms Coghlan summarised the factual circumstances of each of the charges.
6 The indecent assault occurred on 22 January 2012 when you lifted the skirt of the complainant whilst on an escalator at Parliament station. You were immediately challenged by the complainant and her friends and you left the area.
7 The common law assault occurred later the same month, on 31 January 2012 when you moved and reached towards the female occupant of a cubicle in the women’s toilet at Craigieburn Railway Station as she was leaving the cubicle. She pushed the door shut jamming your arm which you managed to remove. You left the toilet area.
8 On 22 September 2008 an order was imposed at the Geelong Magistrates Court that you comply with reporting conditions of the Sex Offenders Registration Act (SORA) for life. You provided a residential address and mobile phone number. You breached your obligations by not living at the nominated address and not reporting such change to police and not reporting the fact that the mobile had become inactive. The breaches occurred in the period between 1 January 2012 and 26 February 2012, a time proximate to the offending on the other two indictments.
9 Your pleas of guilty came late but you must nevertheless benefit from having made them.
10 Victim impact statements from each complainant were read in open court and tendered. You conduct has had a significant adverse effect on each of them.
11 You have a significant criminal record. Convictions for indecent assault at the Geelong Magistrates Court on 22 September 2008 and a conviction for rape in this court on 27 November 2009 are of particular significance. You became subject to the SORA conditions when sentenced on the Geelong matters. You were also sentenced to imprisonment for a total effective term of 1 year and 14 days with a non-parole period of 6 months for the charges of indecent assault.
12
The history of your rape conviction is well known, at least among lawyers. You successfully appealed against conviction to the Court of Appeal on
2 June 2011, with the court ordering a re-trial. However, a further appeal by the prosecution to the High Court was successful and on 28 March 2012 your conviction and sentence of 4 years and 9 month imprisonment with a non-parole period of 2 years and 9 months was reinstated.
13 The current matters, considered separately, are less serious than the matters dealt with by the Geelong Magistrates Court and this court. The prosecution conceded that the current matters are different to the sexual assaults previously committed. As noted in discussion I need to be careful not to infer a sexual element to the charge of common law assault despite the fact that it was gender specific.
14 Your first court appearance in June 2007 at the Sunshine Magistrates Court when you were placed on a non-conviction Community-Based Order (CBO) for 6 months for recklessly causing injury concerned a female, your girlfriend I was told, and a condition of the order was that you be referred to the Men’s Behaviour Change Program. This was subsequently breached and you were re-sentenced. The order recorded on your history is confusing but it seems the sentence was wholly suspended.
15 I accept your counsel’s submission that the indecent assault and common law assault were opportunistic.
16 I accept the prosecution submission that each of these offences were gender specific. Most of your prior criminal history was directed at women.
17 Both the indecent assault and the common law assault occurred whilst the victims were on public transport premises.
18 Your counsel briefly sketched your background. You are 30 years old and were born in Ethiopia. You came to Australia as a refugee with siblings in 2002/2003 to join your mother. Your father was killed in Ethiopia during civil war in the early 1990s. You were educated in Ethiopia and continued education here at Swinburne University. You have worked as a waiter, crowd controller and debt collector.
19 During plea submissions I summarised the relevant chronology of events relied upon by your counsel.
20 I do not intend to repeat this chronology but your history of mental illness was important to your counsel’s submissions. You first became psychiatrically unwell after being imprisoned in September 2008. Your mental state problems continued and were referred to by Judge Allan in his sentencing remarks of 27 November 2009, which were provided to me.
21 You were released by Judge Mullaly in this court a week after your successful appeal to the Court of Appeal. You were released on bail pending the re-trial of the rape charge and were required to live with your brother and report thrice weekly to police.
22 In January 2012 it seems you again became unwell. Your family found it difficult to cope with you. You left your brother’s home in breach of your bail and SORA obligations. Your counsel said you were essentially homeless during this period. All three offences before me were committed during this period.
23 Although it is not clear precisely what your mental condition was during this period, on 26 February it seems relatives arranged for you to be taken to the Emergency Department at the Western Hospital via ambulance. You appeared paranoid and difficult to engage. The diagnosis was thought to be a relapse of schizophrenia due to medication non-compliance. You were to be transferred to Werribee Mercy Hospital however on 27 February you were transferred to the MAP. Your bail was revoked on the following day.
24 You were charged with the current offences on 23 March 2012 and 5 days later on 28 March 2012 the High Court confirmed your conviction and sentence on the rape charges.
25 A report from Mercy Health was tendered as were reports from Dr Lester Walton, dated 10 July 2012 and 8 October 2012, and Dr Kevin Ong from Forensicare, dated 5 March 2013. The former had been obtained by your legal practitioners to assess your fitness for trial and any possible defences. The latter had been obtained by the prosecution.
26 The reports summarise pertinent matters concerning your ongoing psychiatric history and mental state at the time of the reports. The Forensicare report contains additional material concerning your personal history, psychiatric history, drug and alcohol history, medical history, forensic history as well as other matters. It contains reference to your admissions and discharge from Thomas Embling Hospital in August 2009 and September 2010.
27 Ordinarily, the current charges might have been heard in the Magistrates Court. However, you were committed for trial on 1 December 2012 because it was thought at that time you might be unfit to be tried. However, after the receipt of Dr Ong’s report it was determined that there was no fitness issue to be tried.
28 You became eligible for release on parole on 17 March 2013 on the rape sentence originally imposed by Judge Allen. On 27 March 2013 you applied to have the current charges remitted to the Magistrates Court to enable the hearing to be expedited. The application was opposed by the prosecution and was refused by the judge in this court who heard the application.
29 The current offences were committed whilst you were on bail. Therefore there is a presumption of accumulation. You are to be sentenced as a Serious Sexual Offender once I impose imprisonment, which is conceded, on the charge of indecent assault. Protection of the community then becomes the principal purpose for which that sentence is imposed. However I do not consider it necessary to impose a disproportionate sentence on the charge of indecent assault to achieve that purpose. Accumulation is also required on any uncompleted sentence unless otherwise ordered. The fact that you have been sentenced as a serious sexual offender is to be noted in the court records.
30 There was considerable discussion of the relevance of the application of the principles in Verdins case on the plea. The prosecution argued that there was a lack of evidence linking the offending and your mental state condition. I accept the submissions of the prosecution concerning the application of the Verdins principles and I will mitigate the sentence because your mental state is relevant to specific and general deterrence and because prison will be more onerous for you.
31 Your counsel told me that you are currently stable and medication compliant.
32 The prosecution submitted that a total effective term of between 12 and 18 months imprisonment should be imposed. Your counsel did not identify a particular total effective term but suggested a range relevant to the charge of indecent assault and common law assault lower than that submitted by the prosecution. Your counsel argued that a fine should be imposed for the breach of the SORA conditions The prosecution argued that imprisonment was appropriate on this charge.
33 It was agreed that I needed to pay regard to the delay in bringing the matter to hearing because of the complication of your mental state problems and the passage of time from when you became eligible for release on parole until now.
34 On the charge of indecent assault you will be convicted and sentenced to 8 months imprisonment.
35 On the charge of common law assault you will be convicted and sentenced to 5 months imprisonment.
36 On the charge of failing to comply with your SORA reporting conditions you will be convicted and sentenced to 2 months imprisonment.
37 The sentence on the charge of indecent assault will be the base sentence. I order that 3 months of the sentence on the common law assault and 1 month of the sentence on the failure to comply with reporting conditions be served cumulatively on each other, and on the sentence imposed for the indecent assault. That makes for a total effective sentence of 12 months imprisonment. I order that you serve 6 months before being eligible for release on parole.
38 Just check the calculations for me, I think they are right, but just check the, for me.
39 Had you not pleaded guilty to the common law assault I expect I would have sentenced you to about 7 months imprisonment. Had you not pleaded guilty to the failure to comply with reporting conditions I expect I would have sentenced you to about 3 months imprisonment.
40 MS COGHLAN: If Your Honour pleases.
41 MR PAGE: Thank you Your Honour.
42 HIS HONOUR: Thank you very much, thank you both for your help. I might say it was very professional, thank you.
43 MS COGHLAN: Thank you Your Honour.
44 MR PAGE: Thank you Your Honour.
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