The State of Western Australia v Tekle [No 3]
[2024] WASC 417
•8 NOVEMBER 2024
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- TEKLE [No 3] [2024] WASC 417
CORAM: FORRESTER J
HEARD: 8 NOVEMBER 2024
DELIVERED : 8 NOVEMBER 2024
FILE NO/S: INS 263 of 2016
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
HAFTEAB TEKLE
Respondent
Catchwords:
Criminal law - Accused unfit to stand trial for murder - Subject to custody order - Custody order made under repealed legislation - Application to set limiting term of custody order
Legislation:
Criminal Code (WA)
Criminal Law (Mental Impairment) Act 2023 (WA)
Sentencing Act 1995 (WA)
Result:
Limiting term set as the duration of the respondent's life
Category: B
Representation:
Counsel:
| Applicant | : | Ms A Finn |
| Respondent | : | Ms K Gorski |
Solicitors:
| Applicant | : | Director of Public Prosecutions (WA) |
| Respondent | : | Legal Aid (WA) |
Cases referred to in decision:
The State of Western Australia v Chokolich [2024] WASC 346
The State of Western Australia v Smith [2024] WASC 361
The State of Western Australia v Tekle [2017] WASC 170
The State of Western Australia v Tekle [No 2] [2017] WASC 351
FORRESTER J:
Background
Hafteab Tekle was charged on indictment that on 20 August 2015 at Bentley, he murdered Solomon Halefom Gebreyohanus. He was further charged with the offence of assault occasioning bodily harm contrary to s 317(1) of the Criminal Code (WA), arising out of a separate incident.
Mr Tekle suffers from a psychotic illness.[1] He was first diagnosed in 2017. He is now 38 years old.[2]
[1] Dr Claassen diagnosed Mr Tekle with Delusional Disorder, persecutory type, continuous and Dr Brett diagnosed Mr Tekle with a 'Psychotic Disorder (not otherwise specified)'.
[2] His date of birth has been given as 1 January 1986, but it appears that date was assigned when he came to Australia, and his actual date of birth is not certain.
On 6 June 2017, Fiannaca J found that Mr Tekle was unfit to stand trial by reason of mental impairment. His Honour adjourned the matter to see if Mr Tekle would become fit to stand trial within six months.[3]
[3] The State of Western Australia v Tekle [2017] WASC 170.
On 5 December 2017, Fiannaca J determined that the respondent remained unfit to stand trial within the meaning of s 9 of the Criminal Law (Mentally Impaired Accused) Act 1996 (WA) (repealed Act). As a result, pursuant to s 19(4) of the repealed Act, his Honour quashed the indictment in respect of the murder charge, and dismissed the charge and quashed the committal in respect of the charge of assault occasioning bodily harm, and, pursuant to s 19(5), made a custody order in respect of the respondent.[4]
[4] The State of Western Australia v Tekle [No 2] [2017] WASC 351.
The repealed Act was replaced by the Criminal Law (Mental Impairment) Act 2023 (WA) (CLMI Act). Pursuant to the transitional provisions of the CLMI Act, Mr Tekle's custody order under the repealed Act has effect as if it were a custody order made under pt 5 of the CLMI Act.[5]
[5] CLMI Act s 254.
The State has applied for the court to set a limiting term for the custody order pursuant to s 261 of the CLMI Act.
For the reasons that follow, the limiting term for the custody order is set as the life of Mr Tekle.
Relevant legal principles
The relevant legal principles were considered by Quinlan CJ in The State of Western Australia v Chokolich[6] and The State of Western Australia v Smith[7] and, for the purposes of this matter, can be relevantly summarised as follows.
[6] The State of Western Australia vChokolich [2024] WASC 346.
[7] The State of Western Australia v Smith [2024] WASC 361.
The transitional provisions in pt 14 of the CLMI Act provide that a custody order under the repealed Act in effect immediately before the commencement day has effect as if it were a custody order made under pt 5 of the CLMI Act.[8]
[8] CLMI Act s 254.
Upon application by the State for the court to set a limiting term for the custody order pursuant to s 261 of the CLMI Act, the court must set a limiting term for the existing custody order in accordance with s 50 of the CLMI Act.[9]
[9] CLMI Act s 264(1).
In setting the limiting term, the court is required to 'stand in the shoes' of a hypothetical sentencing court and determine the 'best estimate' of the term of imprisonment that the court would, in all the circumstances, have imposed if the court were sentencing the person for the offence, and any mental impairment of the person were not taken into account.[10]
[10] CLMI Act s 50(2).
For the purposes of that exercise, the court must assume the person had pleaded guilty to the charge at the earliest reasonable opportunity and there is no other option but to impose a term of imprisonment.[11]
[11] CLMI Act s 50(3)
The court must arrive at the best estimate of the term of imprisonment the court would have imposed by applying the Sentencing Act 1995 (WA) in light of ordinary sentencing principles, including s 6 of the Sentencing Act.[12]
[12] Smith [17], [35] - [37]; Chokolich [51].
Where the court is dealing with two or more charges against a person and is required to deal with the person under pt 5 of the CLMI Act, the court must make one custody order, and accordingly one limiting term. The limiting term is to be the best estimate of the total effective sentence.[13]
[13] Smith [21] - [41].
The limiting term is taken to have commenced on the day on which the existing custody order was made unless the court, after taking into account any time that the person had spent in custody in relation to the offence before the order was made, orders that the term be taken to have commenced on an earlier day.[14]
[14] CLMI Act s 264(3).
In the case of a charge of murder, unless the court setting the limiting term is satisfied that s 279(4)(a) and (b) of the Criminal Code would have been satisfied, the court must set the limiting term as the life of the person.[15]
[15] Chokolich [78] - [88].
The court is not permitted, or required, to determine a minimum non-parole period that would have been set if the person had been sentenced to life imprisonment.[16] Whether a custody order will be cancelled at any time in the future is a matter for the Tribunal.[17]
[16] Chokolich [89] - [99].
[17] CLMI Act s 51(c), s 73(1)(d)(iii). As Mr Tekle's custody order has already been in operation for longer than 12 months, the jurisdiction of the Court to cancel the custody order under s 74 of the CLMI Act has itself now ceased (see CLMI Act s 73(3)); see Chokolich [11].
Circumstances of the charged offences
The State read an Amended Statement of Material Facts for the purposes of the application. It also tendered a brief of evidence prepared for the purposes of this proceeding.
The facts relied upon by the State may be stated as follows:
Murder - Charge PE 40775 of 2015
The deceased, Mr Gebreyohanus, was 57 years old at the time of his death. He was known to Mr Tekle and had lived across the road from Mr Tekle in Sudan. Mr Tekle migrated to Perth in 2004, and Mr Gebreyohanus migrated to Perth around six months later.
In Perth, Mr Tekle sometimes stayed at a friend's unit which was directly opposite Mr Gebreyohanus' unit complex. Mr Tekle would also visit his girlfriend's sister who lived in the same complex as Mr Gebreyohanus.
At about 4.00 pm on Thursday, 20 August 2015, Mr Gebreyohanus walked from his home to the nearby Bentley Plaza Shopping Centre. CCTV cameras at the Bentley Plaza Shopping Centre captured vision of Mr Tekle watching and attempting to follow Mr Gebreyohanus.
After Mr Gebreyohanus left the shopping centre, a residential CCTV camera again captured vision of Mr Tekle following Mr Gebreyohanus to his home. Mr Tekle approached Mr Gebreyohanus at the entrance to his home and a verbal exchange occurred between them.
Either during or immediately after the exchange, Mr Tekle attacked Mr Gebreyohanus with a knife, inflicting 17 stab wounds to his neck, trunk and left arm. The wounds included injuries to Mr Gebreyohanus' thyroid cartilage, right carotid artery, left subclavian vein and liver.
The disturbance between Mr Tekle and Mr Gebreyohanus was heard by a nearby resident who walked out of his home and saw Mr Tekle. Mr Tekle then ran from the scene. Later that day, Mr Tekle was seen running down Bentley streets.
Police and paramedics arrived and found Mr Gebreyohanus unresponsive and bleeding heavily. Attempts by paramedics to revive him were unsuccessful and Mr Gebreyohanus was pronounced dead.
On 22 August 2015, Mr Tekle was arrested in Perth. When police searched him, they found a folding knife in his pocket. The knife was later swabbed for DNA and forensic testing revealed mixed DNA profiles matching the profiles of both Mr Tekle and Mr Gebreyohanus to a high degree of statistical probability.
When Mr Tekle was examined, he was observed to have a laceration across his right-hand index and middle fingers which had been treated with three stitches to each finger. Mr Tekle participated in two interviews with police, during which he admitted that:
(1)One week prior to the incident, he had purchased a knife from a store in Perth.
He told police he had a reason to buy the knife, which was 'the person killed my, my mum, see… I was a little kid [indistinct] He killed my mum. They make me a slave… That's the reason I got, that's my feeling in my mind, my mind telling me and my body telling me.'
(2)Whilst at the Bentley Plaza Shopping Centre, he saw Mr Gebreyohanus, whom he believed he recognised as the person who killed his mother when he was a child living in Sudan.
(3)He followed Mr Gebreyohanus from the Shopping Centre to his home.
(4)When he confronted Mr Gebreyohanus, Mr Tekle was armed with a knife. He deliberately stabbed Mr Gebreyohanus many times at the front of his home.
He told police, 'I have to stab him to death.'
(5)The knife seized from him was the knife he used to kill Mr Gebreyohanus.
(6)The injuries to his fingers were sustained during his attack on Mr Gebreyohanus.
Mr Tekle was charged, and bail refused. On 24 August 2015, a forensic pathologist concluded that the cause of Mr Gebreyohanus' death was the stab wounds to his neck and trunk.
Assault occasioning bodily harm - Charge PE 29643 of 2015
At about 10.00 am on 17 June 2015, Mr Tekle's brother, Tsegazab Tekle (who I will call Tsegazab without meaning any disrespect), was at a coffee shop in East Victoria Park. From the coffee shop, Tsegazab saw Mr Tekle walking nearby.
At about 10.20 am, Tsegazab returned to his car and saw that his two front tyres were flat. He was inspecting them when Mr Tekle approached him from behind with a knife in his hand.
Mr Tekle put the knife in the waistband of his pants and drew an extendable black metal baton from his jumper with his right hand. He struck Tsegazab twice with the baton to the left side of his hip, causing visible bruising.
Tsegazab ran towards Albany Highway and Mr Tekle chased him. Mr Tekle attempted to strike Tsegazab twice more with the baton, but Tsegazab blocked these strikes with his jacket.
Mr Tekle left the area after a witness yelled out for him to stop.
Mr Tekle was arrested the next day and taken to Cannington Police Station where he refused to participate in an electronic record of interview. He was charged and released on Protective Bail Conditions.
Relevant factors
Mr Tekle's personal circumstances
Mr Tekle's date of birth is not certain. He is approximately 38 years old. His first language is Tigrinya, an Ethiopian language. He is able to understand and speak English, at least at a basic conversational level.
Only limited other information regarding Mr Tekle's personal circumstances is available. Fiannaca J summarised the information known about Mr Tekle's background and the reasons for its limited nature as follows:[18]
The accused's background, as outlined in the reports, relies on information from the accused. It has not been possible for Dr Brett or Dr Claassen, or, for that matter, the psychiatrists who have been treating the accused, to check the accuracy of his account with family or other independent sources because the accused has refused permission for them to discuss the situation with such people.
Dr Claassen considered that the information provided by the accused to him differs slightly from information the accused had provided to Dr Patchett. In fact, Dr Claassen was of the view that the accused 'struggled to provide a logical, coherent narrative of his life to date'. Dr Brett said that the 'background history was difficult to clarify'. Part of the difficulty is that, in the opinion of both psychiatrists, significant aspects of the history given by the accused are part of a delusional construct resulting from the accused's mental illness. As Dr Brett put it, 'it was impossible to clarify whether his history was true or delusional'. However, despite some inconsistencies, there are some common themes that emerge.
The accused said he was born in Sudan. He said he never knew his father, and was in the care of his mother until she was killed when he was between the ages of 7 and 10 years. He claimed that she was killed by a member of the Tekle family, and that he was then enslaved or 'taken in' by that family. He said that the Tekle family brought him to Australia when he was 19.
He said, in effect, that after coming to Australia, he had not been able to sustain stable employment or housing, although he referred to having had a number of jobs until 2012. He was unemployed at the time of the alleged offence. He told Dr Claassen he had never attended school, but told Dr Brett he attended high school for one or two weeks in Australia and had also attended 'English schools', which I take to mean classes to learn English as a second language.
The accused said he has three children from two previous relationships. He is not in contact with either of the mothers or any of the children, although one of his delusions is that those who are out to harm him also want to harm one of his children. He claims that the Tekle family destabilised his relationships.
The accused has a history of alcohol and marijuana (cannabis) use. He denied using methamphetamine. He also denied that his use of alcohol and cannabis was a problem, although he said that he had been a regular user of both substances since coming to Australia and was using on a weekly basis before he was arrested. Notwithstanding the accused's self-assessment, both Dr Brett and Dr Claassen regarded the accused's use of alcohol and cannabis as problematic and clinically significant. I note also that Dr Patchett referred to the accused's use of the substances as 'misuse'.
Both Dr Brett and Dr Claassen have accepted (in the absence of any evidence to the contrary) the accused's assertion that he has not had past contact with mental health services. Dr Claassen reviewed the Psychiatric Services Online Information System database, which 'reflects contact points individuals had with Public Mental Health Services', and that indicated the accused had not been in contact with such services in the past. What appears to be clear is that his psychiatric disorder, which I will come to, has been untreated for a number of years.
[18] The State of Western Australia v Tekle [2017] WASC 170 [30] - [36].
Mr Tekle was asked to leave the family home at the age of 19 years. At the time of the offending, he had been experiencing homelessness and had been sleeping rough.
In a report prepared in relation to the respondent dated 12 May 2017, Dr Zakareia suggested that 'the loss of Mr Tekle's mother deeply affected his sense of self and he was left vulnerable to the major cultural change he faced when migrating to Australia' which 'significantly impacted on his ability to integrate into his own community and individuate. This unfortunately resulted in leading a disorganised lifestyle, with no stable jobs or relationships, punctuated by offences and substance abuse.'[19]
[19] Psychiatric Report of Dr Ahmed Zakareia dated 12 May 2017, 6.
Mr Tekle's counsel has informed me that in January 2020, Mr Tekle was assessed as likely having a long standing intellectual disability of at least mid severity.
Mr Tekle has a relatively lengthy criminal history, largely made up of convictions for public order offences and breaches of bail, but he also has convictions related to carrying an article with intent to cause fear (2012), aggravated assault occasioning bodily harm (2010) and common assault (2009).
Section 279(4) of the Criminal Code
In the case of a charge of murder, the court must set the limiting term as the life of the person, unless the court setting the limiting term is satisfied that a sentence of life imprisonment would have been clearly unjust given the circumstances of the offence and the person, and the person is unlikely to be a threat to the safety of the community when released from imprisonment.[20]
[20] Criminal Code s 279(4); Chokolich [78] - [88], [128] - [136].
It is important to note that the limiting term is a maximum term and in no way sets the amount of time that the person must spend on the custody order. In short, it is not a minimum term.
There is nothing in the circumstances of this case or in Mr Tekle's personal circumstances which supports the proposition that a sentencing court would have found it to be 'clearly unjust' to impose a sentence other than life imprisonment.
Limiting term
In my view, the best estimate of the sentence which would have been imposed on Mr Tekle, had he pleaded guilty to the charge of murder and the charge of assault occasioning bodily harm, and the court sentencing him did not take into account his mental impairment, is a term of life imprisonment.
Any sentence imposed for the offence of assault occasioning bodily harm would have to be served concurrently with the term of life imprisonment.[21] As the limiting term is the best estimate of the total effective sentence, it is therefore unnecessary to separately determine the limiting term which would have been imposed for the offence of assault occasioning bodily harm and I decline to do so.
[21] Sentencing Act 1995 (WA) s 88(5).
Conclusion and order
For these reasons, I order that the limiting term for the custody order made in respect of Hafteab Tekle dated 5 December 2017 is set as the duration of the life of Hafteab Tekle pursuant to s 50 and s 264(1) of the CLMI Act.
Mr Tekle has been subject to the custody order for 6 years, 11 months and 4 days. He spent a further 2 years, 3 months and 13 days in custody on remand for the charges prior to being placed on the custody order.
Pursuant to s 50(4) of the CLMI Act, the sentence can be taken to have commenced on the date that Mr Tekle was taken into custody, being 22 August 2015. While in this case it will not make a material difference as best as can be presently ascertained, I have determined it is appropriate to make that order and I do so.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
SI
Associate to the Honourable Justice Forrester
8 NOVEMBER 2024
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