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NSW Crest

Supreme Court
New South Wales

Medium Neutral Citation:
R v Jenbare [2016] NSWSC 1317
Hearing dates:
22, 23, 24, 29, 30 August 2016; 5 September 2016
Decision date:
16 September 2016
Jurisdiction:
Common Law
Before:
McCallum J
Decision:

Offender sentenced to a term of imprisonment with a non-parole period of 5 years commencing on 9 April 2014 and concluding on 8 April 2019 and a balance of term of 4 years concluding on 8 April 2023.

Catchwords:
CRIME – sentencing – manslaughter on basis of substantial impairment – serious offence involving multiple stab wounds – where offender offered plea of guilty to manslaughter at earliest opportunity – underlying condition of severe, post-traumatic stress disorder, depression and cognitive impairment as survivor of torture while political prisoner in Ethiopia and trauma in refugee camps – unanimous psychiatric evidence that offender’s capacity to control himself substantially impaired – significant degree of impairment of offender’s ability to control himself
Legislation Cited:
Crimes Act 1900 (NSW), s 23A 
Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2), s 44(2)
Cases Cited:
Muldrock v The Queen (2011) 244 CLR 120 [2011] HCA 39 
Catley v R [2014] NSWCCA 249 
R v Tarrant [2016] NSWSC 1155 
R v Halloun [2014] NSWSC 1705 
Sumpton v R [2016] NSWCCA 162
Category:
Sentence
Parties:
Solomon Jenbare (offender) 
Regina (Crown)
Representation:
Counsel: 
B Rigg SC (offender) 
P Lynch (Crown) 
  
Solicitors: 
Jamison Lawyers (offender) 
Director of Public Prosecutions (Crown) 
File Number(s):
2014/108407
Publication restriction:
None

JUDGMENT

  1. HER HONOUR: Soloman Jenbare was arraigned on indictment for the murder of his wife, Wubanchi Asefaw. He pleaded not guilty to the charge of murder but guilty to manslaughter. The Crown did not accept that plea in discharge of the indictment and he was tried for murder.

  2. The offender does not dispute that he stabbed his wife, causing her death. The central issue at trial was his psychiatric condition at the time of the killing, which raised the partial defence of substantial impairment by abnormality of mind under s 23A of the Crimes Act 1900 (NSW). The trial was conducted on the basis that, but for the establishment of that defence, the jury would be satisfied that he was guilty of murder. The basis for the defence was that the offender’s capacity to control himself was substantially impaired by reason of severe, chronic post-traumatic stress disorder, depression and cognitive impairment. The offender suffers from those conditions as a survivor of torture during a period when he was a political prisoner in Ethiopia and later trauma experienced in refugee camps in Kenya and Somalia. The offender came to Australia as a refugee from Ethiopia in 1999.

  3. After a short trial limited to the issues raised by the defence, the jury returned a verdict of not guilty of murder but guilty of manslaughter. I am satisfied that the verdict reflects acceptance of the defence of substantial impairment, which found strong support in the evidence. Manslaughter was left to the jury on the alternative basis of a dangerous and unlawful act. However, that was not the basis on which the trial was conducted on behalf of the offender and, in my view, can be discounted as the basis for the verdict.

  4. The maximum penalty for manslaughter is imprisonment for a period of 25 years.

  5. The Crown acknowledges that, the offender having indicated at an early point his plea of guilty to manslaughter on the basis ultimately found by the jury, he is entitled to have the sentence that would otherwise have been imposed discounted by 25% in accordance with well-established principle. The offender has been in custody since his arrest on 9 April 2014.

Circumstances of the offence

  1. As noted on behalf of the offender, an understanding of the events precipitating the acts causing Ms Asefaw’s death is, to a degree, dependent upon accounts given by the offender. However, I accept, as submitted by Ms Rigg SC, who appears for the offender, that there is sufficient basis to be confident as to the reliability of key aspects of his account. The following summary sets out the facts of which I am satisfied for the purpose of sentencing the offender.

  2. The offender has lived in Australia since 1999. He and Ms Asefaw were married in Ethiopia in 2006. There was evidence at the trial of a history of verbal arguments between the couple but no history of violence, save for one occasion when the offender is alleged to have pushed Ms Asefaw during an argument. The offender has no prior convictions for offences of violence and has never been charged with any such offence. The couple’s arguments appear to have centered primarily on financial concerns arising from the fact that they were both supporting family at home in Ethiopia.

  3. On the afternoon of 8 April 2014, the offender and Ms Asefaw were visiting family in Blacktown with their daughter, helping the offender’s brother move to a new apartment. The offender, who is physically disabled as a result of his experience of torture, was unable to assist moving furniture and instead looked after the children. Ms Asefaw arrived after the offender. According to the evidence of the offender’s brother and sister-in-law, there did not appear to be any argument between the offender and his wife during that time. Ms Asefaw was on the phone to someone overseas for a lengthy period while she was helping with the move.

  4. After Ms Asefaw and the offender returned home that evening, she told the offender she was going to buy a phone card so she could call overseas again. The offender put their child to bed.

  5. When Ms Asefaw returned home, she went into her bedroom. She told the offender she was calling her mother. She was on the phone for several hours. Previously, in 2013, she had attempted to sponsor two of her nephews to bring them to Australia but had been unsuccessful. After her lengthy phone call that evening, she told the offender that she planned to arrange a fake marriage to one of her nephews so he could live in Australia. The offender did not agree to the marriage because he was her husband and because, as a Christian, he would not make a false declaration. He later denied to one psychiatrist that he felt angry about what his wife had said, but told another he was upset. When police later examined the unit, they found an empty suitcase on the bed in the main bedroom.

  6. The offender told police that, when his wife went to the bedroom to make her phone call, he went into the lounge room and started drinking alcohol. The offender’s account as to the amount of alcohol he consumed that night appears to be reliable and consistent with objective evidence. He said he drank two beers and two shots or half a glass of gin. I am satisfied that, at the time of the offence, he was moderately affected by the alcohol he had consumed.

    1. The offender could hear his wife talking on the phone but could not hear what she was saying. He told police he started to feel hungry but there was no food in the kitchen. He went to the bedroom and asked Ms Asefaw if there was anything to eat. She told him to make himself a sauce. He returned to the kitchen and got a knife to make a sauce but there were no onions. He went back to the bedroom, holding the knife, to ask where the onions were. Ms Asefaw said they were on the balcony. The offender has given an account that, upon seeing the knife, his wife thought the worst and over-reacted. As submitted by Ms Rigg, that account is not implausible. I have concluded that I should accept it.

    2. An argument broke out that lead to a physical struggle. During the struggle, eight wounds were inflicted upon Ms Asefaw, three of which were particularly serious. The offender had no wounds. The evidence indicates that Ms Asefaw was able to disarm the offender and leave the apartment, taking the knife with her. She made her way along the street, dropping the knife on the way. She screamed for help until she collapsed and lost consciousness. She died of loss of blood.

    3. There was evidence in the trial of a second knife but any theory as to the involvement of that knife in the struggle would be speculative.

    4. I accept, as put on behalf of the offender, that the placement of the empty suitcase suggests there was a very serious argument in which confronting things may have been said to the offender after the disclosure of an intention to arrange a false marriage. The offender told police some of the things said that night. I am satisfied that the argument probably triggered a fear of abandonment, to which the offender was particularly vulnerable due to his post-traumatic stress disorder and major depressive disorder. I am satisfied that he is likely in that event to have reacted emotionally, impulsively and aggressively.

    5. I am satisfied in the circumstances that the offence was unpremeditated and was due to a sudden, unexpected loss of control on the part of the offender.

    6. The offender did not give evidence at the trial or on sentence. He participated in a lengthy police interview. He initially told police Ms Asefaw came at him first, with a knife, and that he acted in self-defence. However, that version of events was not maintained at trial and seems likely to have been false or at least wrong; the offender was not wounded at all.

    7. The offender maintained to police that he did not have any intention of stabbing or cutting Ms Asefaw. He admitted to holding the knife until he saw blood but had no recollection of how the wounds were inflicted.

    8. Having regard to the nature and number of Ms Asefaw’s wounds, the offender’s assertion that he did not intend to wound her must be rejected. Consistent with the jury’s verdict, I am satisfied that he did wound her intentionally. However, the psychiatric evidence suggests that the offender may well have no recollection or at least a confused recollection of the critical incident, suggesting that his answers to police, although clearly wrong, may not have been dishonest.

    9. After Ms Asefaw left the unit, the offender tried to call his brother to ask him look after the child but the brother did not answer. The offender took the child from the unit and carried her to the brother’s unit, a short distance down the road. Two neighbours saw the offender walking along the footpath below the units comforting the child and telling her he loved her over and over.

    10. After delivering the child to his brother, the offender walked back to the unit and approached two police who had answered a triple-0 call. He said “I’m the person you’re looking for” and raised his arms in the air. He gave the officers his address and expressed concern for his wife, asking if she was alright. The officers then activated the in-car video and recorded the conversation. They initially did not know what he was referring to and thought he was intoxicated because of his staggered walk. They soon realised that he was limping and unsteady because of his disabilities due to previous injuries. However, one officer noticed a smell of alcohol on the offender’s breath.

    11. The Crown submitted that the offender intended to kill Ms Asefaw. I am not satisfied beyond reasonable doubt that he had that intention. Ms Rigg relied in that context on the nature of the wounds which, although ultimately fatal, were not as clearly supportive of an intent to kill as targeted stab wounds to a vulnerable part of a person's body. I accept that the offender loved his wife and was deeply committed to her and the child. His good character belies any intention to kill her; his conduct immediately after his acts is also inconsistent with any such intention. 

    12. The offender did not give evidence at the trial or on sentence. He participated in a lengthy police interview. He initially told police Ms Asefaw came at him first, with a knife, and that he acted in self-defence. However, that version of events was not maintained at trial and seems likely to have been false or at least wrong; the offender was not wounded at all.

    13. The offender maintained to police that he did not have any intention of stabbing or cutting Ms Asefaw. He admitted to holding the knife until he saw blood but had no recollection of how the wounds were inflicted.

    14. Having regard to the nature and number of Ms Asefaw’s wounds, the offender’s assertion that he did not intend to wound her must be rejected. Consistent with the jury’s verdict, I am satisfied that he did wound her intentionally. However, the psychiatric evidence suggests that the offender may well have no recollection or at least a confused recollection of the critical incident, suggesting that his answers to police, although clearly wrong, may not have been dishonest.

    15. After Ms Asefaw left the unit, the offender tried to call his brother to ask him look after the child but the brother did not answer. The offender took the child from the unit and carried her to the brother’s unit, a short distance down the road. Two neighbours saw the offender walking along the footpath below the units comforting the child and telling her he loved her over and over.

    16. After delivering the child to his brother, the offender walked back to the unit and approached two police who had answered a triple-0 call. He said “I’m the person you’re looking for” and raised his arms in the air. He gave the officers his address and expressed concern for his wife, asking if she was alright. The officers then activated the in-car video and recorded the conversation. They initially did not know what he was referring to and thought he was intoxicated because of his staggered walk. They soon realised that he was limping and unsteady because of his disabilities due to previous injuries. However, one officer noticed a smell of alcohol on the offender’s breath.

    17. The Crown submitted that the offender intended to kill Ms Asefaw. I am not satisfied beyond reasonable doubt that he had that intention. Ms Rigg relied in that context on the nature of the wounds which, although ultimately fatal, were not as clearly supportive of an intent to kill as targeted stab wounds to a vulnerable part of a person's body. I accept that the offender loved his wife and was deeply committed to her and the child. His good character belies any intention to kill her; his conduct immediately after his acts is also inconsistent with any such intention. 

Basis for substantial impairment defence

  1. The defence of substantial impairment is established where a person who would otherwise be guilty of murder establishes that:

  1. at the time of the act causing death, the person’s capacity to understand events, or to judge whether his actions were right or wrong, or to control himself, was substantially impaired by an abnormality of mind arising from an underlying condition, and

  2. the impairment was so substantial as to warrant liability for murder being reduced to manslaughter.

  1. The first issue calls for expert medical evidence, the second is a question for the evaluative judgment of the jury.

  2. In the present case, the evidence as to the medical issue was all one way. There was evidence from two forensic psychiatrists, Dr Stephen Allnutt (called by the Crown) and Dr Olav Neilssen (called by the offender). There was also evidence from two neuropsychologists, Dr Susan Pulman (whose report was tendered by the Crown) and Dr Ilana Hepner (called by the offender).

  3. The expert evidence of those witnesses, which was largely consistent, established that the offender had an underlying condition, namely post- traumatic stress disorder, depression and partial neuropsychological impairment, probably due to his period of torture as a prisoner in Ethiopia. The expert witnesses also agreed that the offender’s capacity to control himself was substantially impaired by those conditions. The principal focus of the trial was the second element of the defence, namely, whether the impairment was so substantial as to warrant liability for murder being reduced to manslaughter. The jury was satisfied that it was and that is the basis on which the offender must be sentenced.

  4. Dr Neilssen diagnosed anxiety disorder or post-traumatic stress disorder, depressive illness and probable psychotic illness. The post-traumatic stress disorder diagnosis was made on the basis of symptoms of intrusive memories, nightmares, insomnia and related anxiety arising from exposure to torture in Ethiopia during his imprisonment there for a period of 8 months. During that period, the offender was subjected to life-threatening persecution and tortured on a nightly basis. Subsequently, his hands and feet were deformed and he witnessed the deaths and torture of other people in refugee camps.

  5. The offender told Dr Neilssen, “I am not guilty… it happened but I didn’t intentionally wish for it to happen”. Dr Neilssen gave evidence that people with post-traumatic stress disorder often describe a heightened perception of threat, and people who are depressed view their situation as worse than it actually is and are often impaired in their ability to find solutions to problems, including marital conflict and perceived abandonment.

  6. Against that diagnosis, I accept Ms Rigg’s contention that the offender was probably not thinking very much at all on the night of the offence, but rather acting almost instinctively or automatically.

  7. I have also had regard to Dr Neilssen’s evidence that a feature of post-traumatic stress disorder is to dissociate in traumatic situations, affecting the reliability of memory formation and the ability accurately to recount events. There is a strong basis in the offender’s account to police and the psychiatrists for concluding that the sight of blood was a trigger of dissociation and confusion in the offender’s mind, leading to impaired memory.

  8. Dr Allnutt gave a similar opinion to Dr Neilssen. In particular, he agreed that, at the time of the offence, the offender was suffering from pre-existing chronic post-traumatic stress disorder and major depressive disorder. He also considered the offender’s mild neurocognitive disorder based on the neuropsychological testing conducted by Dr Hepner. Dr Allnutt accepted that the offender’s underlying conditions caused an abnormality of the mind that would have manifested in irritability, short temperedness and proneness to react impulsively and aggressively to provocative and non-provocative situations.

  9. Dr Allnutt considered that the combination of post-traumatic stress disorder and depression could contribute to an over-reaction in a life-threatening situation because it could trigger high levels of anxiety and cause the person to find a distorted justification so as to impair his capacity to control actions.

  10. Both psychiatrists considered that the offender’s cognitive impairment compounds his vulnerability, particularly in the area of executive function, which can reduce a person’s capacity to control his actions, contributing to a loss of control.

  11. The degree of cognitive impairment was confirmed by the evidence of Dr Hepner and Dr Pullman, who conducted the neurological testing on the offender. The outcome of that testing found objective confirmation in the MRI scan, which showed extensive hygromas on the brain consistent with his history of being tortured.

Seriousness of the offence

  1. It is necessary to make an assessment of the seriousness of the offence. As acknowledged on behalf of the offender, his acts which caused his wife’s death were of considerable brutality; she must have died in immense pain and fear. The offence must be regarded as one of considerable seriousness.

  2. On the current state of the law, [1] the fact that the offence was committed in the home of the victim is not an aggravating factor in terms of s 21A(2) of theCrimes (Sentencing Procedure) Act 1999 (NSW), since it was also the home of the offender. It is nonetheless appropriate to have regard, as an aspect of the offence, to the vulnerability of Ms Asefaw, who was isolated from any prospect of assistance against the vicious attack she faced.

Personal circumstances of the offender

  1. The offender’s personal circumstances were set out in careful detail in Ms Rigg’s written submissions in terms not disputed by the Crown. [2] The following is drawn almost verbatim from those submissions. The offender was born in Ethiopia on 16 June 1964 and was aged 49 at the time of the offence. He is now 52. He was the second eldest of eight children and enjoyed a supportive and loving upbringing. He commenced learning English at six years of age and was educated to the equivalent of Year 12, in English. He commenced tertiary studies in a medical field after school, but discontinued this in order to train as a teacher. He worked as a teacher for approximately two years before being imprisoned for political reasons.

  2. During his period of imprisonment he was subjected to physical torture, exposed to the risk of death and witness to the killing of others. The details of the torture and trauma are set out in his histories to the expert psychiatrists who gave evidence at the trial, [3] as well as the history he provided to medical practitioners who treated him prior to the offence. [4] As already noted, he was granted asylum as a refugee because of his persecution in Ethiopia and consequential exile from that country.

  3. The offender has no criminal convictions other than for an offence of driving with the novice range of alcohol, which resulted in the imposition of fine and a short period of disqualification. There were no conditions upon his liberty at the time of his offending.

  4. The offender has suffered extensive physical and mental disabilities as a result of his background, described in detail in the experts' evidence at trial and Exhibit 4. The disabilities in his feet arise from a combination of the torture and the consequences of leprosy diagnosed in Somalia in 1989 and treated there for two years.

Degree of impairment

  1. The offender’s mental state raises complex considerations. A mental illness or intellectual disability may not affect the objective seriousness of an offence, even where causally related to the offending, [5] Ordinarily, such a condition is regarded as relevant in the assessment of the offender’s moral culpability for his conduct. However, the extent to which it may reduce moral culpability calls for a careful assessment of the relative seriousness of the mental illness. As noted on behalf of the offender, whether that is treated as an aspect of the objective seriousness of the crime (being in this case in the nature of an element of the offence) or an aspect of the assessment of moral culpability, its significance in the synthesis of relevant considerations should be the same.

  2. In the present case, the offender’s psychiatric disorders and cognitive impairment were causally related to his offending, contributing significantly to a sudden loss of control. While that reduces his moral culpability significantly, the Court must not lose sight of the fact that that feature of the offence is in the nature of an element of the offence, being the reason his responsibility for the offence has been reduced from murder to manslaughter.

  3. There have been cases where the mental condition found in the offender barely establishes the defence. In such cases, it has been held that the degree to which moral culpability is reduced on that account will be small. [6]

  4. I am satisfied that, in the present case, the offender’s psychiatric disorders contributing to his loss of control were significant. However, as acknowledged on behalf of the offender, they are not so severe as to amount to a complete defence on the grounds of mental illness.

  5. The significance of the offender’s reduced moral culpability on that account is that it reduces the role in the sentencing process for denunciation and punishment. It also means that there is a reduced role for general deterrence in the sentence to be imposed.

Other relevant matters relevant to the determination of an appropriate sentence

  1. I accept that the offender’s mental state and ongoing physical pain and disability will have an effect that his experience of incarceration will be harsher. As noted on his behalf, it was in prison (in Ethiopia) that his primary trauma of extended torture was sustained.

  2. I am satisfied that the offender is genuinely remorseful. He expressed pained, florid remorse as soon as he learned his wife was dead. Before that time, I accept that he genuinely did not appreciate the severity of the injuries he had inflicted, owing to his impaired or confused recollection of the critical events. He has since expressed deep remorse to the psychiatrists who assessed him. His early offer to plead guilty to manslaughter and ongoing preparedness to adhere to that offer reinforce the conclusion that he is genuinely remorseful.

  3. As to his prospects of rehabilitation, it is difficult to make a confident assessment. The chronic nature of his condition has prompted the psychiatrists to a reasonably bleak assessment of his future. Against that consideration, I have regard to his prior good character for a period of 49 years before the present offence. His offending may have been contributed to by his consumption of alcohol; that is a matter which, as submitted on his behalf, is capable of being redressed, provided he has appropriate support and supervision in the community upon his release from prison.

Victims

  1. At the proceedings on sentence, victim impact statements were read on behalf of the family of Wubanchi. They painted a picture of a warm and vivacious woman with a beautiful soul. I have had regard to that material in the manner allowed by the law. [7] I thank the authors of those statements for sharing their stories of Wubanchi’s life. Her death has caused intense pain and grief within her immediate family and beyond. On behalf of the Court, I pay my respect to the family and acknowledge their grief and sadness.

  2. It is recognised that the sentence to be imposed on the offender will not bring redress for their loss. That is not and could not appropriately be the object of sentencing by a court. The loss of a human life is tragic; the recognition of that fact is an important premise of the sentencing task. It will be understood, at the same time, that a just criminal justice system must have regard to all considerations that serve the established objects of the sentencing process.

  3. But for the offender’s plea, the sentence I would have imposed would be a period of imprisonment for twelve years. As already explained, the offender is entitled, at law, to have that sentence reduced by 25% because he pleaded guilty at the earliest opportunity to the offence of which he has now been found guilty by the jury. For that reason, the total sentence will be a period of imprisonment for 9 years.

  4. There are powerful reasons in the present case for fixing a non-parole period which reflects an adjustment to the statutory ratio. [8] The offender’s largely untreated mental condition contributed significantly to the commission of the offence. He will require intense treatment, guidance and supervision for a lengthy period upon his release from prison. On that basis, I consider that it is appropriate to fix a non-parole period of 5 years with a balance of term of 4 years.

  5. Soloman Jenbare, I sentence you to a term of imprisonment with a non-parole period of 5 years commencing on 9 April 2014 and concluding on 8 April 2019 and a balance of term of 4 years concluding on 8 April 2023. The first date on which you will be eligible for parole is after the expiration of your non-parole period on 8 April 2019.

**********

Endnotes

1. As at the date of this judgment, the decision of the Court of Criminal Appeal in R v Johnson; R v Lulham remains reserved.

2. Written submissions for the offender dated 4 September 2016 at paras 41-44; the Crown put on no written submissions.

3. Allnutt T106, Hepner T195, 196.46, Nielssen 172-3, Pullman report pages 3, 9.

4. Set out in Exhibit 4.

5. Ms Rigg submitted that is what has been “usually held” since the decision of the High Court in Muldrock v The Queen (2011) 244 CLR 120 [2011] HCA 39; this is not the occasion to analyse that proposition.

6. For example Catley v R [2014] NSWCCA 249; R v Tarrant [2016] NSWSC 1155.

7. R v Halloun [2014] NSWSC 1705 at [46]; cited with approval in Sumpton v R [2016] NSWCCA 162 at [153].

8. Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2)

 

SOURCE: https://www.caselaw.nsw.gov.au/decision/57db792ee4b058596cb9f9ab