Citation: R v Birkneh [2023] NSWDC 147
Court: District Court of New South Wales
Date: 8 May 2023
Judge: Scotting DCJ
Background
The offender, a man in his forties, pleaded guilty in the Local Court to one count of specially aggravated break and enter and commit a serious indictable offence, namely wounding with intent to cause grievous bodily harm, contrary to s 112(3) of the Crimes Act 1900 (NSW). The offence occurred in the early hours of 18 September 2021 at the former matrimonial home of the offender and the victim, who had been married for 17 years and had two children together.
The offender travelled by train and taxi to the victim's home, smashed a window to gain entry, and confronted the victim while armed with a tomahawk axe and a knife. He struck the victim multiple times with the axe, causing multiple lacerations and wounds to her arms, hands, legs, and knee. The couple's children were woken and witnessed the assault. A squeeze bottle of petrol and fire-starting materials were also found at the scene; the offender told police he had intended to set himself alight if he could not see his children.
After the assault, the offender called triple zero, waited for police to arrive, made full admissions, and directed officers to the weapons. He was arrested at the scene and had been in custody from that date. The matter came before the District Court for sentencing following the guilty plea.
Legal Issues
- What sentence was appropriate for an offence of specially aggravated break and enter with wounding, carrying a maximum of 25 years imprisonment and a standard non-parole period of seven years?
- What weight should be given to the offender's subjective circumstances, including his traumatic childhood, mental health issues, drug use, and cooperation with authorities?
- Was there a finding of special circumstances warranting a departure from the statutory ratio between non-parole period and head sentence?
- What discount applied to the sentence in light of the early guilty plea?
Decision
Scotting DCJ imposed a sentence of 5 years and 3 months imprisonment, with a non-parole period of 3 years and 3 months, backdated to 18 September 2021 (the date of arrest). The non-parole period was set to expire on 17 December 2024 and the head sentence on 17 December 2026. The offender was entitled to a 25% discount on sentence for his guilty plea entered in the Local Court, pursuant to s 25D(2)(a) of the Crimes (Sentencing Procedure) Act 1999.
His Honour found special circumstances, noting that this was the offender's first period of custody and that his complex mental health and drug addiction issues warranted a longer period of supervision on parole than the standard ratio would produce. At the same time, the court assessed his prospects of rehabilitation as guarded, given his limited insight into the impact of the offence on the victim and children, his tendency to minimise his conduct, and the absence of any prior mental health treatment.
The court acknowledged a number of mitigating factors in the offender's background, including extreme childhood trauma in Ethiopia (including physical abuse by a stepfather and the deaths of siblings), his mother's mental illness, and a difficult life history. The offender had also been using methamphetamine, reportedly on a three-week binge prior to the offence, and was experiencing significant distress about his restricted access to his children. However, the court found that these matters did not substantially reduce the objective seriousness of the offence, which involved a premeditated armed entry into the victim's home during the night.
The court took into account the Victim Impact Statement, noting that the victim and children continued to feel unsafe in their home, that the victim's injuries persisted, and that the offence had long-lasting effects on the family. His Honour also acknowledged that COVID-19 pandemic restrictions had made the offender's time in custody more onerous.
Orders Made
- The offender was convicted of specially aggravated break and enter and commit a serious indictable offence (wounding with intent to cause grievous bodily harm) contrary to s 112(3) of the Crimes Act 1900 (NSW).
- Sentenced to 5 years and 3 months imprisonment, with a non-parole period of 3 years and 3 months, commencing 18 September 2021.
- Non-parole period to expire 17 December 2024; head sentence to expire 17 December 2026.
- Parole eligibility date: 17 December 2024.
- The apprehended domestic violence order made in the Local Court on 21 April 2022 was extended to expire on 17 December 2026.
Key Takeaways
- A conviction under s 112(3) of the Crimes Act 1900 (NSW) for specially aggravated break and enter carries a maximum of 25 years imprisonment and a standard non-parole period of 7 years; the sentencing court calibrated the penalty below the standard non-parole period following the application of a 25% guilty plea discount.
- Special circumstances were established where the offender was serving his first custodial sentence and presented with complex mental health and drug dependency issues, justifying an extended parole supervision period.
- The District Court assessed prospects of rehabilitation as guarded where the offender demonstrated limited insight into the harm caused to the victim and children, minimised the seriousness of the offending, and had not previously sought or received mental health treatment.
- Cooperation with police, including calling triple zero, waiting at the scene, making full admissions, and identifying the weapons, was treated as a mitigating factor, but did not overcome the objective seriousness of a premeditated, armed, nocturnal entry into the former family home.
- Adverse findings of fact at sentencing are to be established beyond reasonable doubt, while findings favourable to the offender are assessed on the balance of probabilities, consistent with R v Olbrich (1999) 199 CLR 270.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 112(3)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 21A, 25D(2)(a)
Cases
- Attorney General's Application No 1 of 2022 (2002) 56 NSWLR 147
- R v Olbrich (1999) 199 CLR 270
- Ward v R [2022] NSWCCA 290