Prosecution v Accused

3 Manslaughter is a category 2 offence under the Sentencing Act 1991 (the 'Act').[2] I am therefore required to impose a custodial sentence, unless an exception under the Act applies.[3] It has not been submitted on your behalf that I should do anything other than impose a term of imprisonment and set a non-parole period.

4 On the morning of 15 June 2024, you attended Mr Chaaban's house in Heidelberg West. Also present at the house were Mr Chaaban's partner, Ms Crystal Cinciruk, and his friend, Mr Justin Williams.

5 The events that followed are relayed through snapshots of CCTV footage and the observations of several eyewitnesses.

6 You knocked on the door and identified yourself to Mr Chaaban. In response, Mr Chaaban said, 'what the fuck are you doing here' and told you that you were not welcome. He told Mr Williams to leave and Ms Cinciruk to stay inside, and then went outside.

7 According to Mr Williams, you shouted 'come on cunt' at Mr Chaaban, who then stepped outside of his front gate and responded, 'I'll go you ya cunt'.[4] Mr Williams observed you remove your shirt and throw it to the ground, describing you both as 'firing right up at each other' and becoming 'very aggressive'.[5]

8 Ms Cinciruk went to the stoop two or three times as the incident unfolded.[6] On the final occasion, she saw that Mr Chaaban had you pinned down, describing him as trying to stop you from being aggressive.[7] She assumed you would sort it out as the fight did not appear to be particularly violent or serious, and after watching you struggle on the ground for about five minutes, went inside.[8] From inside the house, over the sound of sirens, she heard you tell Mr Chaaban to 'stop', saying that he had 'won' and that 'the police are coming'.[9] She did not go back outside until police arrived.

9 Mr James Hodson was walking down the street at the time of the incident. He saw two people 'rolling around, wrestling almost' in the gutter.[10] He heard you say words to the effect of, 'stop, I'm going to rip your eye out'.[11]

10 Mr Sambath Kheuv was working at a nearby property at the time. He went outside and, from a distance, saw two men arguing aggressively across the road.[12]

11 Mr Kheuv observed you and Mr Chaaban for about two minutes before the police arrived. He said the argument escalated into a physical altercation, during which you both punched each other several times. Mr Chaaban pulled you down on top of him, and the balance of power shifted between the two of you.[13] Mr Kheuv's evidence was that, while Mr Chaaban was on top of you, you grabbed him around the neck and did not release your grip.[14]

12 Another two witnesses, Mr Umang Gupta and Mr Zachary Webster-Adams, were together in a car and observed the altercation as they drove by. Mr Webster-Adams described seeing two people 'tangled up really intensely',[15] such that he could not tell who was holding whom, but said that they appeared to be wrestling with little movement.[16] Mr Gupta saw two men fighting on the ground, with the person on top wearing a hoodie and holding the other man around the neck as the man underneath struggled to remove the hands from his neck. [17] He told police that the two men 'looked like they were trying to choke each other'.[18]

13 Ms Belinda Sharrad and Mr Benjamin Pisani also observed the altercation from their cars as they drove by. Mr Pisani described seeing two men wrestling who appeared to be 'in suspended animation', [19] noting that they weren't really moving and looked as though they were cuddling.[20] He said the shirtless man was on top and appeared to have the other man in a headlock.[21] Ms Sharrad saw two men in the gutter and said that the man on the bottom had his arm around the neck of the man on top, with both facing the same direction. She observed only 'slight movement', describing the men as swaying and rocking from side to side. Ms Sharrad contacted police as she was concerned that they might end up on the road and be hit by passing traffic.

14 When police arrived at the scene, they found Mr Chaaban lying on top of you in a semi-conscious and 'floppy' state. As police attempted to separate you, you kicked and punched Mr Chaaban to the head, only stopping when restrained by the officers.

15 Shortly afterwards, paramedics transported Mr Chaaban to the Austin Hospital. He was admitted to ICU, and his condition continued to deteriorate. He died just before 9:00 am the following day.

16 Dr Judith Fronczek, forensic pathologist, performed an autopsy later that day and concluded that Mr Chaaban's cause of death was 'multi-organ failure complicating blunt force trauma in the setting of methylamphetamine use'. [22] Mr Chaaban sustained abrasions and scratches to the face, neck, ear and upper chest. Internally, he suffered haemorrhaging in the front and back of the neck, indicating blunt force trauma and the use of compressive force in that area. Dr Fronczek was unable to determine the level of force used or the duration for which it was applied.

17 Toxicological analysis showed that Mr Chaaban had a methylamphetamine level of 2.5 mg per litre when he was taken to hospital after the incident. Dr Fronczek concluded that methylamphetamine may have contributed to the development of cardiac arrythmia. She considered that both the methylamphetamine and the blunt force trauma were substantial and operating causes of Mr Chaaban's death.

18 The Court received five victim impact statements from Mr Chaaban's family and loved ones, each of which were read aloud at the plea hearing.

19 Mr Chaaban's sister, Ms Alissa Arpaci, described him as a kind-hearted man with a deep affection for his family. She spoke of the profound and enduring impact of Mr Chaaban's death and explained that her heart condition had deteriorated, resulting in frequent arrhythmic episodes.

20 Ms Abir Chaaban, another of Mr Chaaban's sisters, whose statement was read by her son Jaylan, described the loss of her best friend, protector and hero. She spoke of the deep sense of emptiness following his death and the way in which moments of celebration, including Jaylan's admission to the legal profession, are now overshadowed by grief.

21 Ms Cacharel Chaaban described her uncle as generous, loving and kind. She now suffers from anxiety and disrupted sleep, has left school prematurely, and has required psychological counselling to address the grief and trauma arising from Mr Chaaban's sudden death.

22 Ms Lama Chaaban described the profound toll that her brother's death has taken on her life. She spoke of the ongoing emotional impact, the loss of joy in family celebrations, and the significant disruption to her career.

23 Finally, Mr Chaaban's long‑term partner, Ms Crystal Cinciruk, described the devastating loss of her best friend and the love of her life. Since his death, her mental health has deteriorated; she has become socially isolated and struggles with anxiety. She remembered Mr Chaaban as a caring and charismatic man who brought warmth and light to those around him.

24 In determining your sentence, I have reflected on the significant and enduring impact of Mr Chaaban's death on his family and loved ones. The sentence I impose is not a measure of the worth of Mr Chaaban's life, but reflects the range of factors that I am required by law to take into account, only one of which is the victim impact statements.

25 Your counsel was unable to obtain a complete account of your personal circumstances due to your limited engagement with them. Much of what follows is therefore drawn from a conversation between your lawyer and your mother, together with a psychological report prepared to assess your fitness to stand trial, which I will discuss in detail below.

26 You were born on 19 October 1983 and were 40 years old at the time of your offending.

27 You are an Aboriginal man, though there is limited material before the Court about your connection to community and culture beyond your expressed desire to strengthen those connections.

28 You attended primary school in Melbourne's northeast. Your parents were separated and your father lived in Barwon Heads with your stepmother.

29 When you were about nine years old, your mother was involved in a near-fatal car accident. She was hospitalised and remained in a coma for a significant period. Your mother reports that this event was traumatising for you, marked a significant change in your behaviour, and disrupted your living arrangements during her recovery.

30 When you were about 10, your father was murdered by his father‑in‑law during a weekend when you were visiting. You reported that you witnessed your father being shot, although your mother indicated that this was unlikely.

31 You and your mother moved to Warrnambool once she had sufficiently recovered from her injuries. You were bullied at school, however, and as a result went to live with your stepmother, where you remained until your mother returned to Melbourne.

32 You have a history of substance abuse dating back to early adolescence. It is reported that you began using cannabis in Year 7, and over time this escalated to heroin, methylamphetamine and alcohol abuse.

33 You are single and have never been married. You are believed to have at least one, possibly two, children with whom you have no ongoing relationship. You were the recipient of a disability support pension because of an acquired brain injury ('ABI') sustained in 2016.

34 In late-2025, a number of steps were taken to determine your fitness to stand trial. Until then, you had attended only one court hearing and had failed to engage with your legal representatives.

35 The findings of your fitness assessment were provided to the Court by way of the psychological report of Dr Amanda Nielsen, dated 31 December 2025. Dr Nielsen attempted to assess you in custody on two occasions in October 2025, and on a further occasion by videoconference in December 2025.

36 At the first attendance, Dr Nielsen was unable to obtain a full picture of your mental state due to your limited engagement. You indicated that you did not believe you had engaged legal representatives and left the room after a short time. Notwithstanding this, Dr Nielsen observed no gross impairments in your comprehension or communication and no signs of acute psychosis. Her confidence in those observations, however, was limited by the brevity of your interaction.

37 On the second occasion, you declined to attend, and on the third occasion, your engagement was minimal and you left the interview after just four minutes.

38 Given the difficulty of obtaining information from you directly, Dr Nielsen reviewed a number of documents provided to her by your lawyers, including medical records and court-ordered reports, to form a clearer picture of your cognitive functioning. While she was unable to reach any conclusion on your fitness to stand trial, Dr Nielsen notes the following:

(a) In May 2015, you were seen by psychologist, Dr Jackie Rakov, but you refused to participate. You presented as 'very antisocial' with evidence of 'enduring paranoid illness', though it was difficult to tell if this had ever occurred outside of the context of drug use. Dr Rakov reported that you exhibited elements of Post-traumatic Stress Disorder and Narcissistic Personality Disorder/Antisocial Personality Disorder.[23]

(b) In October 2016, you were admitted to the Alfred Hospital following a fall from the roof of a hotel. A discharge summary recorded significant behavioural concerns during your admission, including ongoing intravenous drug use and non-compliance with treatment. Your behaviour was not considered to be the result of acute psychosis but was thought to reflect a combination of antisocial personality disorder, substance‑induced psychosis and brain injury‑related mood instability.[24]

(c) In March 2017, a Forensic Medical Officer was unable to assess your fitness to be interviewed due to aggressive behaviour. Records from that assessment note that you described the fall that resulted in your ABI and multiple fractures as a suicide attempt.[25]

(d) In September 2017, you were reviewed by psychiatrist Dr Sachin Jindal, who formed the opinion that you had an ABI with associated mild paranoid features, possibly psychotic or stress‑related. Treatment with the antipsychotic risperidone resulted in a mild improvement in your paranoid symptoms by November 2017.[26]

(e) In June 2018, a review by psychiatrist Dr Katinka Morton found no evidence of an enduring psychotic disorder, despite concerns raised by prison staff about possible psychosis. A further review in January 2019 by psychiatrist Dr James Belshaw reached the same conclusion, noting however that you may be prone to psychotic-like presentation when stressed or anxious.[27]

(f) You were referred to the Court Integrated Services Program ('CISP') on eight occasions between 2017 and 2024. The CISP reports indicate that you repeatedly failed to attend appointments with support workers, clinicians, and crisis accommodation services. These reports consistently identify similar areas of need, including longstanding substance abuse, unstable accommodation, and difficulties associated with mental health issues and your ABI.[28]

39 As I have said, Dr Nielsen was unable to comment on your fitness to stand trial because of your lack of cooperation with her assessment and was unable to hypothesise why you are currently unable or unwilling to meaningfully engage with legal practitioners and external clinicians.

40 You have a lengthy criminal history that dates to when you were aged 13 and have served terms of imprisonment for violent offences.

41 Although extensive, your prior offences have all been dealt with summarily in the lower courts and consist of property, dishonesty, driving and drug-related offending, as well as numerous contraventions of court orders. Notably, between 2004 and 2022 you received custodial sentences on nine occasions for offences against the person, including unlawful assault, recklessly causing injury, assaulting police officers and emergency workers on duty, and attempted assault with a weapon.

42 You also have ten pending matters that are listed for hearing in the Heidelberg Magistrates' Court on 4 May 2026; however, details of these matters were not provided to the Court.

44 The crime of manslaughter is inherently serious, involving as it does the unlawful taking of a human life. There is, however, a wide range of conduct that may constitute the crime of manslaughter by unlawful and dangerous act. At one end of the spectrum there is conduct that comes close to murder, such as where one person deliberately attacks another with a weapon, intending to cause them serious injury. At the other end of the spectrum is conduct such as a single, spontaneous back-hand strike to a person's face, causing them to fall and subsequently die.[29] The latter offending falls at the lower end of the range for manslaughter.

45 In this case, no weapon was used, and you were not in the company of others. There was no evidence that you instigated the fight. When Mr Chaaban came out of his house, a witness described the two of you as 'firing up' at each other. Both of you were heard yelling, and Mr Chaaban was heard using aggressive words.

46 What transpired next is caught on CCTV footage. The moving images are grainy, taken from a distance, and lack clarity. Other aspects of the events are described by eyewitnesses, whose evidence was credible and reliable.

47 I accept that your unlawful and dangerous act - placing Mr Chaaban in a headlock - was committed spontaneously with no premeditation or planning. It occurred in the context of a fight between two adult men of similar stature, each of whom were attempting to inflict harm on the other. At times Mr Chaaban had the upper hand, and at other times you did. The two of you were described at various points as being entangled on the ground, wrestling on a public street, for roughly 15 minutes.

48 Relevantly, no person who observed the fight thought it necessary to intervene or considered that Mr Chaaban was at risk of death. Ms Cinciruk watched you and Mr Chaaban fighting for up to five minutes. She said that he was on top of you and that he had you 'sorta pinned down, like trying to stop [you] from being aggressive'.[30] She heard you say, 'the police are coming, stop, stop, you've won'.[31] Ms Cinciruk described the incident as a fight between two men that appeared likely to resolve itself and did not regard it as particularly violent or serious.[32]

49 You were both observed at various times to be choking each other. The prosecution submitted that I could find you held Mr Chaaban in a headlock for an extended period. Based on the evidence of Dr Fronczek, it is difficult to assess the duration of the headlock or the degree of force applied. All that can be said is that your compression of Mr Chaaban's neck was significant and substantial, and sufficient to have been a cause of his death.

50 I accept that you did not intend to cause serious injury to Mr Chaaban, let alone kill him. I have also had regard to the fact that you continued to kick and punch Mr Chaaban even after police arrived, at which point Mr Chaaban was defenceless and unresponsive.

51 It follows that, in my view, your offending falls below the mid-range for manslaughter.

52 You have had a significant and long-standing drug problem. Your mental health issues are difficult to assess. It is not submitted that the principles enunciated in Bugmy[33] or Verdins[34] are enlivened to reduce your moral culpability.

53 As discussed, you were the subject of an investigation concerning your fitness to stand trial. Your lack of engagement prevented Dr Nielsen from forming an opinion and, accordingly, no application was made on your behalf. Nonetheless, the investigation revealed matters of significance to sentence. These matters, which are set out above, provide important context to your circumstances and the assessment of your moral culpability.

54 You have not engaged with your lawyers in the defence of your trial and have failed to participate in any psychological or psychiatric assessments. The historical evidence supports a conclusion that you have significant, untreated mental health issues, including an ABI sustained in 2016. There is also a history of significant drug use. In these circumstances, it would be artificial not to acknowledge that there are significant issues - whether arising from your ABI, psychiatric issues or the impact of drug abuse - that are evident in your history and in your repeated interface with the courts over the years. I have therefore had regard to your mental health by way of background and context.

55 Given my conclusion that the gravity of your offending is less serious than many manslaughter cases commonly dealt with in this Court, and taking into account your background circumstances and mental health issues, I consider your moral culpability to be reduced, albeit in a limited way.

56 Any mitigation needs to be balanced against all other sentencing factors, including your prospects of rehabilitation and remorse.

57 I did not receive any evidence about your time on remand, such as any participation in courses or work. There is also no evidence that you have shown or expressed any remorse or insight into your offending. You are now 42 years old and have a lengthy criminal history. I agree with the submissions made by your counsel that your prospects of rehabilitation are guarded.

58 The parties drew my attention to a number of comparable cases in determining the appropriate sentence in this matter and I have had regard to those rulings. I must also consider the principles and purposes of sentencing as outline by the Act.

59 The Act relevantly provides that 'a court must not impose a sentence that is more severe than that which is necessary to achieve the purpose for which the sentence is imposed'.[35] This reflects the common law principle of parsimony. I have had regard to the principle when considering the appropriate sentence.

60 General deterrence and denunciation remain important sentencing considerations. Placing a person in a headlock and cutting off their airflow is a dangerous thing to do, as this case highlights. You took Mr Chabaan's life, and in sentencing you, I must denounce your conduct and punish you for your offending. Although general deterrence has a part to play in sentencing you, I accept that you are not an overly suitable vehicle for that purpose because of your mental impairments. Community protection and specific deterrence - which is the need to deter you personally from committing further offences - are also relevant factors given your criminal history.

62 Mr Devlin, for the offence of manslaughter, I sentence you to imprisonment for eight and half years.

63 I order that you serve five and half years before becoming eligible for parole.

64 I declare that you have served 668 days of pre-sentence detention, not including this day.

65 I will also make the disposal sought, noting that it is not opposed.

[1] Crimes Act 1958 (Vic) s 5.

[2] Sentencing Act 1991 (Vic) s 3(1).

[3] Ibid s 5(2H).

[23] Psychological Court Report of Dr Amanda Nielsen dated 31 December 2025 ('Nielsen report'), [41].

[29] DPP v Megaldo [2025] VSC 829.

[33] [2013] HCA 37; 249 CLR 571.

[34] (2007) 16 VR 269, 276.

[35] Sentencing Act 1991 (Vic) s 5(3).