R v Abebe [1999] VSC 214

Supreme Court of Victoria|1999-06-01|Before: HARPER, J.

Teklemariam Abebe, you have been found guilty of the murder of Kassa Wube on 2nd of January 1997. I must now sentence you for that crime.

There are a number of purposes for which sentences may be imposed. I will not repeat in full the relevant legislative provisions, but these purposes may be shortly stated as one or other or a combination of punishment, deterrence, rehabilitation, denunciation and protection of the community. All of these should I think be considered in your case. I have done so accordingly. An element of punishment and denunciation must of course be involved. You have destroyed a life. Such an act, when committed consciously, deliberately and with the intention that the victim should die or at least suffer really serious injury, necessarily constitutes one of the gravest offences of all. Anything less than a long term of imprisonment would devalue life and would fail properly to reflect the need to denounce its destruction. It is also important that the courts take appropriately into account the deterrent value of the just sentence. This value is impossible to measure in any but the most general way, but the widespread knowledge that murder will in the majority of cases attract severe punishment doubtless has a deterrent effect on some who would otherwise translate their anger into homicide.

I accept that in your case the murder was not premeditated. You acted in the heat of the moment, influenced no doubt by a large number of forces which, in the moments before your attack on Mr Wube, coalesced in a sudden determination to rid yourself of him. It is necessary in order to understand the circumstances under which you were then operating to examine the history of your often difficult and disadvantaged life.

You were born in Addis Ababa on 18 September 1950. You are therefore in your 49th year. After nine years at school you became a panel-beater. It was a job which, although you liked it, involved arc welding which damaged your eyes. You therefore turned to driving a taxi. It was during this part of your life that your interest in art was awakened and encouraged by a Japanese acquaintance. You began working with him and he taught you, in your barristers words, "the finer points of art". I am satisfied that you demonstrated and have retained an ability in this field well above the average. I have seen the photographs of your murals in the Jordan Catholic Day Care Centre in Osaka and the reproduction of one of the works you exhibited last month at the visitors' centre of the Port Phillip Prison. They are accomplishments of which you deserve to be proud.

You left Ethiopia for Japan in 1975 when you were 25 years old. Despite the friendships which you made with two Japanese gentleman in Addis Ababa and doubtless retained during at least your early years in Japan, life there must have been extremely difficult. You had no family and no Ethiopian friends to call upon and the differences in culture and language between Japan and Africa are of course very great.

You arrived on a students' visa which either restricted or removed your ability to gain employment. Not long after your arrival in Japan, your Japanese colleagues abandoned the plans they had once had to continue and to develop their business interests in Addis Ababa. By that time the Emperor Haile Selassie, who had been deposed by the military in September 1974, had been succeeded by Colonel Mengistu Haile Mariam. He took power in February 1977. Foreign investments and most industries had already then been nationalized and a totalitarian regime had been installed. Then, in July 1977, Somalia invaded the Ogaden region in the southeast of the country. It is little wonder that the Japanese connection which had brought you from Ethiopia was cut and you felt you could not return home.

On the other hand, continued residence in Japan was far from easy. You had left Ethiopia before Colonel Mengistu came to power. Your purpose in leaving was to pursue a career in Japan. It was not to flee repression at home. You could not therefore qualify as a refugee and thereby obtain refugee status, although in 1978 you were recognized by the United Nations High Commissioner for Refugees as what is known as a "mandate refugee". As I understand it, this status is conferred on those who, having freely left their homeland, are still abroad when developments at home make returning dangerous or impossible. Once you became a mandate refugee you were legally entitled to work in Japan. Not surprisingly, however, jobs were hard to find and the status of your Japanese visa remained uncertain. All this must have greatly compounded the loneliness which was in any event inevitable.

I have little difficulty in accepting that the situation in which you found yourself caused you to suffer severe psychological stress. You also suffered from alcohol abuse. In a sense this was perhaps self-imposed. In the circumstances, it was hardly either surprising or blameworthy. On the contrary, it is greatly to your credit that you overcame your problems with alcohol. Since 1984 you have had but one alcoholic drink and that was on the fatal morning of 2 January 1997.

With all the difficulties which you faced in Japan, the last thing you needed was a serious accident. Yet even that befell you when you suffered multiple fractures as a result of a fall. You were in hospital for several months. Some time after that you were, as a pedestrian, struck by a car and spent another week in hospital. Eventually with the help of a Canadian pianist, with whom you became acquainted in Japan, you obtained permission to leave Japan and reside in Canada as a mandate refugee. Again, however, life was difficult. You were and are not fluent in English and Canada is as different from Japan as Japan is from Ethiopia. Again, finding a job was not easy although when you moved from Alberta, your original place of Canadian residence, to Ontario, you eventually found a job in a fast food restaurant in Toronto. It was from there after corresponding with a friend in Australia that you came to this country.

Your life to that stage was about as unlikely to result in any long term relationship with a person of the opposite sex as any life could be. This in itself must have made you more susceptible than you would otherwise have been to shyness and a general lack of confidence in your social skills, and to a more particular lack of confidence in your ability to construct a viable and lasting marriage. In this you were very largely, if not wholly, the victim of circumstances beyond your control. The fact that one result may have been a brittleness of personality is something for which you cannot be blamed.

I accept that after your marriage you had reason to believe that a relationship inconsistent with society's general notions of the obligations of man and wife had arisen between your wife and Mr Wube. You became clinically depressed as a result of this and were prescribed medication, which unfortunately you did not always take.

You separated from your wife and for a period lived in Sydney. I accept that you returned to Melbourne and to renewed contact with your wife and that this was without her opposition and perhaps even with her endorsement. Certainly she was prepared to accept your assistance in the setting up and the operation of her restaurant. You worked long hours on this project. The restaurant itself was open for some 12 hours each day with much work involved in preparation and after closing. I accept that you played your part in the work involved in operating the restaurant and that during late 1996 you had difficulty sleeping in the little time which you had for sleep.

On 2 January 1997 you were exhausted and depressed. It was in these circumstances that you confronted the man whom you saw as standing between you and a satisfactory marriage, and whom I am satisfied you also saw as an affront to your status as a husband.

One has sympathy for you in adopting this general attitude while having no sympathy whatsoever with the notion (which, of course, has not been espoused on your behalf) that it justified a violent reaction, let alone a murder.

I must keep firmly in mind the principle that the court should never in passing sentence devalue any human life. I am, however, entitled, indeed bound to take into account your previous good character and the mitigating factors which are relevant to your circumstances.

I have in this context read and made note of the very high commendation which have you received from a number of persons with whom you were acquainted in Japan. They speak without exception of the generosity of spirit and indeed in one case the nobility of character which you displayed in Japan and which without exception impressed them.

I accept that amongst the mitigating factors which I should take into account are the very difficult circumstances of your life. These were in my opinion such as to rob you of many of the defences against disappointment in relationships which society is entitled to expect will be well developed in persons who have not experienced the problems which you have been forced to confront.

In my opinion the appropriate sentence on your conviction for murder is 12 years' imprisonment. I order that you serve a minimum of nine years and six months before becoming eligible for parole. I declare that the period to be reckoned as having already been served under this sentence is 881 days.

I direct that the fact that this declaration has been made and its details be noted in the records of the court.

On your conviction for the theft of a motor vehicle, it seems to me that a sentence of seven days' imprisonment to be served concurrently with the sentence for murder is appropriate.

An application has been made pursuant to s.7 of the Crimes (Confiscation of Profits) Act 1986 to forfeit to the State the property referred to in the schedule to the application. I have already made an order in relation to that.

There remains the question of an application pursuant to s.464ZF(2) of the Crimes Act. This application is for an order directing that you undergo a forensic procedure for the taking of an intimate sample from your body. The particular sample sought is of your blood.

An application under s.464ZF may be made after a person has been found guilty of a forensic sample offence. Murder is such an offence. You have been found guilty of that offence. An essential condition of the making of the order has therefore been established. While essential, however, that condition is not of itself sufficient.

A court hearing an application made under this provision of the Crimes Act must, whatever the crime, take into account its seriousness and must be satisfied that in all the circumstances the making of an order is justified. In other words, parliament has not said that a conviction for murder necessarily results in the success of an application such as that presently under consideration. In this case the application is not supported by any material of any kind. Given that the conviction for murder is not itself sufficient the position therefore is that I have nothing upon which to be satisfied that in all the circumstances the making of the order is justified. The application is therefore refused.

(Confiscation of Profits) Act 1986

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