DPP v Yassin [2021] VSC 780

2 The victim, Mr Osman was 35 years of age at the time of his death. He was born in 1985 in Somalia. In 1992 in Somalia a bomb exploded in his home killing his father and two of his siblings. Later that year Mr Osman came to Australia with his mother and brother, settling in Melbourne in the hope of finding a better life.

3 It is clear that life in Australia was difficult for Mr Osman. In 1997 he and his family moved to Kenya and then returned to Australia in 2001. Mr Osman experienced difficulties with drugs, alcohol, and his mental health. His contact with his family was sporadic and he suffered from periods of isolation and instability. His loss has been felt very deeply by his family who have lost a loved family member. In victim impact statements, his mother and two siblings recounted their sense of loss, grief, and pain compounded by the fact that Mr Osman was killed in such a violent way. The circumstances of his death are tragic.

4 Although you did not intend to kill Mr Osman, by your plea you accept responsibility for his death. This tragic loss of his life forms a central focus of the sentence that I must impose on you.

5 On the afternoon of 26 June 2020, you together with Najat Elhaj went to a public housing estate in South Melbourne for the purpose of buying drugs. You visited two floors in the building and purchased and consumed a small amount of cannabis at one of the flats you visited. You and Ms Elhaj then descended in the lift and left the building.

6 Outside the building there was a chance meeting between you and Mr Osman who you had previously met but did not know well. What happened next is described in your account, which the prosecution accept as being an accurate record of what occurred. Mr Osman asked you whether you had any drugs or money and followed you and Ms Elhaj as you walked towards your car. Mr Osman continued to ask you for drugs or money and you told him to leave. When Mr Osman did not leave, you produced a small kitchen knife from your pocket. According to Ms Elhaj, she said to Mr Osman that she did not want to argue with him and, at one point, Mr Osman walked backwards away from you saying he did not want any part of it.

7 A verbal argument ensued which escalated and Mr Osman punched you in the head and produced a chisel. When you saw the chisel you attempted to grab hold of Mr Osman's hand and the two of you fell to the ground in a brief struggle. After rolling on the ground for a few seconds Mr Osman appeared to stop struggling and the two of you stood up. You and Ms Elhaj then left the scene.

8 You accept that you stabbed Mr Osman in the chest. An autopsy revealed that the stab wound passed through the left side of the chest, a small amount of left lung, and then into the left ventricle of the heart penetrating through to the left ventricle. The stab wound direction is from front to back, left to right side of body, and slightly upwards. A CT scan showed the wound to be approximately eight centimetres deep. In addition to the fatal wound, Mr Osman sustained two defence type incised wounds to the left hand and two incised wounds to the lower right leg.

9 In pleading guilty to manslaughter you accept that in stabbing Mr Osman you committed an unlawful and dangerous act that resulted in his death.

10 I accept that the incident which resulted in Mr Osman's death was spontaneous and happened over a very short period of time. I do not accept your Counsel's characterisation that the incident was something that happened by chance. That description understates your role and suggests that it was passive. I take into account that both you and Mr Osman were armed and Mr Osman struck you shortly before the fatal encounter.

11 But it was you who produced a knife from your pocket to deter Mr Osman. Although when you produced the knife you did not intend to stab Mr Osman, it is clear that you adopted an aggressive posture at least to warn off Mr Osman and it resulted in a rapid escalation between the two of you.

12 The degree of force used by you is not established in the evidence and given that the two of you were moving and fell to the ground it is not possible to estimate. However, Mr Osman sustained a substantial wound to his torso and it resulted in catastrophic injury. I note that you quickly left the scene, but since Mr Osman was standing at the time you left, I accept that you had no sense of the extent of the injuries that were sustained.

13 Your Counsel submits that this is one of those cases where you were drug affected and your judgement impaired, and that this was a mitigating factor in circumstances where you were introduced to drugs at an early age and in the context of social isolation and depressed mood.[2] It is unclear from the evidence whether, and to what extent, you were intoxicated by cannabis or other drugs at the time of the fatal encounter with Ms Osman. I am not prepared to regard the fact that you may have been drug affected at the time as a mitigating factor. I do however take into account that, as will appear, you did not have the benefit of parental support in your formative years as an early adolescent. Your father effectively had abandoned your family and your mother was working long hours in order to do her best for the family. You moved schools a number of times, often with the best of intentions of your mother, but this contributed to you lacking a stable environment in which to mature. For that reason, your decision making and judgement has been negatively impacted through no fault of your own. To some extent, this reduces your moral culpability for the offending.

15 You were born in May 1996 in Australia and are now 25 years of age. You mother was born in Somalia and came to Australia as a refugee. You have an elder sister with whom you are close. In 1997, your father left the family and went to Africa. You had no contact with him until you were around 12 or 13 years of age and have had no contact with him since this time.

16 Your mother had very little money and worked long hours in order to support the family. Both education and religious faith are important in your family. You attended an Islamic school in Werribee and then East Preston. These schools were relatively strict and you found the discipline difficult, increasingly so as you became a teenager. In 2010, when you were around 14 you moved to a high school in Flemington.

17 At your new school there was considerably more freedom and you had little supervision. Your mother continued to work very hard and was not around to keep a close eye on you. You started smoking marijuana and getting into trouble at school. Your mother bought a house in Tarneit and you went to Laverton High School and then Tarneit High School. You were misbehaving and unsettled in each school. In 2013, when you were around 17 your mother sent you to live with an uncle in Perth. After some failed attempts to establish yourself in a trade you soon returned to Melbourne to live with your mother. By this stage you had been smoking cannabis for a number of years.

18 When you returned to Melbourne you drifted around couch surfing and continuing to smoke marijuana. You started smoking methylamphetamine (ice). In the context of your increased drug use and unstable life you committed a number of offences.

19 You have some prior convictions all of which were imposed in the Magistrates' Court. You were convicted in August 2016 and in February 2018 for affray. In March 2018, you were convicted of possession of methylamphetamine and cannabis, and placed on a community correction order for 12 months.

20 In August 2019, you were arrested and bailed and then arrested again on 12 September 2019 and remanded in custody in relation to further offending. You spent two months on remand and then were released on bail with the Court Integrated Services Program support. You were living with your sister and her husband. Your sister assisted you with meeting your bail conditions and this was a period of some stability for you. Your sister, Filsan Yassin, gave evidence before me on your plea. In her evidence she described this period as being very positive for you. You were off drugs, sober, and as she described it you were doing extraordinarily well. However, your sister was pregnant and during COVID-19 she and her husband went to live with your mother. You were unable to live there as your mother was conducting childcare from her house. You returned to drug taking and drifted away from your family.

21 Although they are not prior convictions, you were dealt with for the above 2019 charges in April 2021. At that time you were convicted of unlawful assault; possession of methylamphetamine, heroin, and butanediol; and dealing with property that was suspected of being the proceeds of crime. Those offences were committed in 2019 and also involved the breach of the community correction order that had been imposed the previous year. For those offences you were given an aggregate term of imprisonment of two months.

22 That history is relevant in a number of ways. First, I was told that no pre-sentence detention was taken into account when you were gaoled for two months in 2021, despite the fact that you had spent two months on remand for those offences. Although that period on remand is not pre-sentence detention for the current offence, I take it into account.[3]

23 Second, in terms of your prior convictions they fit into the category of relatively minor offences that are consistent with both your life being unstable and your drug use. I do not give them much weight but they show a pattern emerging from you mid-teens of isolation and anti-social behaviour including substantial drug use.

24 The convictions that were recorded in April 2021 are different and are more relevant to your prospects of rehabilitation. These convictions include an unlawful assault. On the plea it was explained that this concerned an altercation between you and another man. The two of you were staying for a short time at a flat belonging to another person. You found the victim rifling through your things, there was an argument, and you punched the man. Police attended and found drug equipment and this led to the assault and drug charges to which you pleaded guilty.

25 In this context, it is also significant that you told Dr Davis, a psychologist who has provided a report for the purpose of the plea, that since you have been in prison you have assaulted a cell mate with a kettle and have been taking illicit drugs including Seroquel (quetiapine) and buprenorphine, neither of which have been prescribed to you. The assault resulted in you being placed in isolation.

26 In his report Dr Davis records your lengthy history of chronic use of several substances and notes that you meet the criteria for a stimulant use disorder. Otherwise he notes that you are diagnostically complex, with a history of depressed mood compensated for by your history of drug use. He notes some evidence of paranoia and that the death of Mr Osman has caused you to have recurrent distressing dreams. He notes that you have an impulsive personality and with your history of drug use, you pose a moderate risk of further offending.

27 Having regard to these matters, including the fact that you have been taking drugs in prison and assaulted a cell mate, I am somewhat cautious in my assessment of your prospects of rehabilitation. Much will depend on both your ability to find a meaningful place in the community and resist the temptation of drugs that to date you have been unwilling or unable to avoid.

28 I note that the support of your family remains steadfast. This will be an important support in your rehabilitation if you are receptive to it. In her evidence before me, your sister impressed with her willingness to support you and the pain that she and your mother endure as a result of you being in prison.

29 I am persuaded that you are remorseful for your actions and for the dreadful consequences that have resulted from them. Your plea of guilty provides evidence of your remorse. In addition, your sister spoke of your deterioration in the aftermath of the stabbing and your decision to hand yourself into police when they came looking for you in relation to the incident. I accept your response to the stabbing as being informed by your remorse.

30 I also take into account your plea of guilty for its utilitarian value. By your plea you have avoided a trial which would have provided strain on witnesses and further anguish to Mr Osman's family. In addition, I take into account in your favour the fact that due to the current pandemic the demands on the criminal justice system are extreme. For that reason, there is a heightened utilitarian value in your plea of guilty.

31 Although there are a number of matters that you can rely on in mitigation, this was a fatal attack in a public place in which you used a knife that you carried on you. The Court must, by the sentence that it imposes, punish you and make it abundantly clear that violence, particularly with knives and bladed weapons, cannot be tolerated. General deterrence is an important factor to protect the community from violent crimes of this kind and I intend to give it considerable weight.

32 In addition, given my assessment that your prospects of rehabilitation are somewhat guarded, I consider that it is also necessary that the sentence I impose deter you from offending in the future and bring home to you the seriousness of your conduct.

33 As you acknowledged through your Counsel a term of imprisonment is inevitable. In fixing a term of imprisonment I note that you are still a youthful offender and rehabilitation remains an important factor. Further, it is the reality that as a result of the pandemic the conditions of incarceration are much more severe than in other times. Visits are restricted, prisons are liable to be locked down at any time, and movement within the prisons is heavily restricted. It is likely that these restrictions will impact on your ability to obtain treatment to support your mental health.

34 I have had regard to those cases that the parties have identified as being comparable.[4] It is well recognised that manslaughter is an offence that can be committed in an enormous variety of cases.[5] Even in those cases in which one can find elements of commonality with the present offence, there are equally a number of points of difference.

35 In setting your sentence I must also set a minimum period before you are eligible for parole. Your Counsel urged me to impose a shorter period of parole than might otherwise be the case. I have had regard to that submission in fixing a non-parole period.

36 Ismail Yassin, for the crime of manslaughter I sentence you to a term of imprisonment of seven years. I fix a period of four years before you are eligible for parole.

37 I declare that you have already served 429 days, not including today's date, by way of pre-sentence detention, to be reckoned as already served under the sentence I have just imposed.

38 I am required by s 6AAA of the Sentencing Act 1991 to state the sentence I would have imposed but for your plea of guilty. Undertaking that task as best I can, I record that had you not pleaded guilty, I would have sentenced you to a period of 10 years' imprisonment with a non-parole period of six years.

39 I will make the disposal order sought by the Crown.

[1] The maximum penalty for manslaughter has since increased to 25 years. See Crimes Amendment (Manslaughter and Related Offences) Act 2020 s 3. No party referred to this increase and I have not taken it into account.

[2] R v McKee & Brooks [2003] VSCA 16, [21] (Vincent JA).

[3] R v Renzella [1997] 2 VR 88.

[4] DPP v Awad [2019] VSC 706; R v Garrard [2020] VSC 154; Director of Public Prosecutions v Devey (No 2) [2021] VSC 121; DPP v Ackerley (No 2) [2021] VSC 257; R v Volpe (Sentence - Manslaughter) [2021] VSC 353; R v Oakley [2021] VSC 430.

[5] Vu v The Queen [2020] VSCA 59, [33] (Kaye, T Forrest and Osborn JJA) (citations omitted).