R v Ibrahim [2006] VSC 475

2 In any event, in November 1999, your first child Mohammed was born. Shortly after the birth of your son the relationship with your wife commenced to deteriorate with arguments and general conflict. One cause of dissention was the fact that your wife had taken Mohammed to Melbourne for her parents to look after. Subsequently, you and your wife separated and, in January or February 2001, you each returned independently to Melbourne where you lived with your respective parents for a short period of time before renting a property together in Glenroy.

3 In March 2001 your daughter Marwa was born.

4 It was submitted by the Crown that you finally separated from your wife shortly after March 2001 and that she went to live in a Ministry of Housing property in Reservoir. Through your counsel you disputed this assertion, claiming to have lived at that address for some period of time between 2002 and 2005. But even on your account to Mr Bernard Healey, a clinical psychologist who prepared a report on your behalf in April 2005, you were certainly not residing there continuously. Indeed, your sister Howa Ibrahim, who gave evidence on your behalf and spoke of your love for Ms Abdurahman (or Sadia as I will sometimes refer to her), also said that you and Sadia had a lot of conflict in your marriage from the beginning until the end. Ms Abdurahman's version of events is that the contact between you during this period was limited to occasional social events, lunch time meetings and access visits; and that, whilst you wished to resume the relationship, she made it clear to you that she had no desire to do so.

5 Whatever the precise living arrangements, your relationship with Ms Abdurahman could be described as turbulent.

6 Your marriage came to an end on 7 January 2005 when you obtained a divorce according to Islamic religious rites. Your sister Howa told the Court that the certificate of divorce was given to Sadia's mother.

7 The evidence of your sister, and of your friends Yousif Mohammed (a youth worker) and Omar Abdi (a supply chain worker at Woolworths), was to the effect that, prior to, and after, the termination of your marriage you were emotionally upset and stressed.

8 Although you had obtained the divorce, Howa Ibrahim's evidence was to the effect that you queried how Sadia could have done this to you after all you had given her. In my view, this discontent was one of the factors relevant to the February and March offences.

9 In February 2005, when Ms Abdurahman's parents went overseas she and the children were residing at their house in Roseberry Avenue, Preston. She also had the use of their Nissan Pulsar motor car. On 10 February, Ms Abdurahman left the premises intending to take her 5 year old son to Coburg Primary School, her daughter to a childcare centre and her younger sister to the Glenroy Medical Clinic. Despite your claims through your counsel that you had stayed the night at the Roseberry Avenue address, I am quite satisfied that you appeared uninvited at the Preston property. Further, I am satisfied on the depositional material that, against Ms Abdurahman's wishes, you virtually forced yourself into her motor car demanding to be driven to your work.

10 According to Ms Abdurahman's version of events, after the children and her sister had been dropped off, you asked how much money she had and she replied she had roughly $300. You also demanded that she withdraw money from the nearest ATM terminal using her keycard and Ms Abdurahman told you that her keycard was empty. At this time you were rifling trough her purse and you located her father's keycard. You ordered her to take out all her father's money. To effect this transaction you had Ms Abdurahman drive to a nearby Caltex service station in Widford Street, Glenroy where she used the ATM to withdraw $360. All this was alleged to have occurred after you had produced a knife in the motor car and threatened her with it.

11 The Crown has been cautious in the allegations about the circumstances because security footage of the service station depicts you and Ms Abdurahman at the autobank and apparently leaving it together in a non-antagonistic state. Further, no knife having been found, and you having denied possessing one when subsequently interviewed by police, the Crown have not sought to press that aspect of the matter. It appears to be common ground that you were, in fact, driven to an area in Camp Road, Broadmeadows in the vicinity of your place of employment, Convenience Foods. Once there, an argument ensued between you and your former wife about the deterioration of your relationship. You were concerned that Ms Abdurahman no longer wanted you in her life. She claims that you were pointing a knife at her while uttering threats. As I have said, the Crown have taken the view that the presence of the knife cannot be proved beyond reasonable doubt and your plea has been made and conducted on that basis.

12 Your account of events is, in essence, that through a message on Ms Abdurahman's mobile phone, you learned of the existence of her boyfriend (a workmate of yours named Tim Keegan) and that this knowledge made you extremely angry. These are assertions which can be gleaned from portions of your record of interview despite the obvious language difficulty.

13 The evidence is unclear as to whether your anger stemmed from a discovery of the existence of a boyfriend or Ms Abdurahman's rejection of you, and your resentment of it. However, there is no doubt about your reaction. While you were enraged you spat on Ms Abdurahman, punched her in the neck and pushed her from the motor vehicle. You moved into the driver's seat and, despite Ms Abdurahman's protestations, you drove off leaving her confused and dazed on the roadside.

14 On the evening of that day, after having made contact with police, you attended at the Coburg Police Station where a record of interview was conducted. During that interview you took the police to Pearson Street, Brunswick where you had left the motor car belonging to Ms Abdurahman's parents. In the vehicle were found Ms Abdurahman's mobile phone, black handbag, and orange purse. Inside the purse was an ATM receipt for the $360. The money, however, was missing.

15 According to Ms Abdurahman the money was taken by you. This you denied in your record of interview.

16 In his submissions the Crown Prosecutor candidly stated that there was a pragmatic approach to the construction of the first count. Apart from not alleging any offence involving the use of a knife, that count does not specifically allege theft of the money. Furthermore, in relation to the robbery of the black handbag and contents, it is only your plea which satisfies the element of an intention to permanently deprive.

17 The artificiality of this count, constructed in the light of your offer to plead guilty to the count of attempted murder, makes the fixing of an appropriate sentence difficult.

18 After this incident, Ms Abdurahman applied successfully to Broadmeadows Magistrates' Court for an intervention order against you. In the weeks that followed, you made a number of phone calls to Ms Abdurahman threatening to kill her. You did not, however, actually see her. Insofar as the evidence of the witness Ms Delinda Lockett is to the effect that she observed you and your wife together with your children at Coburg Primary School, I regard her as being mistaken. I accept the sworn statement of Ms Abdurahman that this did not occur. She also said that, from time to time, her father and male cousins would attend school with her. Moreover, you were well aware that after 11 February 2006 the terms of the intervention order prevented you from approaching Ms Abdurahman at Coburg Primary School.

19 Nonetheless, on 17 March 2005 you went to the school in order to confront her. You took with you a brown handled kitchen knife with a 12 cm blade. In your subsequent account of this incident, contained in your record of interview, you told police that you had been the victim of a kidnapping in which three men, apparently including Ms Abdurahman's boyfriend, blindfolded and threatened you before, fortuitously, taking you to Coburg Primary School in time to encounter your wife. It is not necessary to detail your allegations. It is sufficient to state that they have no basis in fact.

20 On the preponderance of the evidence, I am satisfied that on this day your wife was returning from having taken your son into the school when she observed you standing at the rear of her motor car. You beckoned her towards you but she would not approach and remained about 15 metres from the car. In the ensuing conversation you threatened to kill her and she turned and ran back towards the school buildings calling for help. You pursued her for some 40 metres but she managed, with some difficulty, to push open one of the heavy wooden doors into the school hall. By this time you were close behind. She entered the vestibule area and stumbled into a bag rack as you grabbed her shirt from behind trying to pull her backwards. You were saying in Somalian: "You will die today, there is no way you will survive" or words to that effect.

21 At about this time you commenced to stab Ms Abdurahman on a number of occasions. Your actions were observed by Ms Stacey Benton, who was an integration aid supervising the young children in the hall doing gym activities. She deposes to seeing Ms Abdurahman turn to face you and you attacking her head area with a closed fist which Ms Benton thought was holding something. She estimated that there were more than 10 blows. Ms Benton saw Ms Abdurahman turning her face to the left and holding her palms outwards with her fingers upwards, in an endeavour to protect her face. She heard your former wife call out "help" as she was being struck. Ms Benton described Ms Abdurahman as pushing away from you and falling towards her, at which point you ran from the hall. As you left the scene you damaged Ms Abdurahman's vehicle with a beer bottle. You were arrested about one or two kilometres away. You then showed the police where you had thrown the knife which was in Lock Street, Coburg.

22 Another witness to the stabbing was Ms Delinda Lockett, a parent who was also assisting the small children with gym work. After what she interpreted as an initial tussle, she saw you stabbing Ms Abdurahman in what she describes as "a slow and continual motion". She described the blows as being aimed at the neck and chest.

23 I think her description of the tussle is more apt to describe you attempting to grab Ms Abdurahman and she attempting to fend you off. In any event, you would expect some variation in the observations of witnesses where incidents such as this one occur suddenly and unexpectedly. What, however, is common to these accounts, is the deliberate and concentrated nature of your attack upon your unarmed victim.

24 According to Ms Abdurahman, she believed that she was going to die, and, according to your guilty plea, it was your specific intention to kill her.

25 Ms Abdurahman was taken to the Royal Melbourne Hospital where a number of potentially life threatening stab wounds were observed. These were to the right shoulder, the throat, the right upper arm, the left upper arm and the left side of the back of the head. Additionally, there was a small wound to the left wrist.

26 Ms Abdurahman has suffered a residual disability from the injury to her left shoulder as a result of nerve damage. She is scheduled to undergo surgery in the new year.

27 In your record of interview you denied wanting to kill your former wife. You stated that you took the knife out when she said to you: "You have to die, I don't want to see you any more." I do not accept that version of events. It is contrary to the observations of the eyewitnesses and your plea of guilty to attempted murder.

28 Nor do I accept that Ms Abdurahman provoked you by saying that you were not the father of her children, as you instructed your counsel. It was said that this interpretation of events gained strength from that portion of the record of interview in which you told police that you had said: "I am the father of the children." If any such comment was made by you, it may, in my view, be linked to your concern that Ms Abdurahman no longer wanted you in her life and that this could affect your contact with your children. There is no doubt that you found the situation emotionally difficult and highly stressful, as you did the knowledge that you had been supplanted by another man. In this regard, however, it should not be forgotten that you were the one who obtained the divorce in January 2006. You also appear to have blamed your ex-wife for the loss of your job.

29 It was put by your counsel that you sought psychiatric assistance at the Northern Hospital on 16 February 2005 because you were hearing voices following separation from your former wife; but no hospital records of the detection of any mental or physical disorder was produced to the Court. In fact, you informed Mr Bernard Healey that you were told by the hospital staff to consult a social worker/counsellor at Broadmeadows Health Centre.

30 I am prepared to accept that this was an emotionally stressful time for you and that this offence occurred in the course of the termination of a relationship which was extremely important to you. However, this offence was a very serious one. You attended Coburg Primary School armed with a knife. You went there to deliberately confront Ms Abdurahman, and you did so in deliberate breach of an intervention order. You threatened to kill her and pursued her into the school hall with that specific intent. Your anger was such that you attacked her in the presence of small children, and, having stabbed her a number of times, you left her to her fate. Your culpability is not lessened by the fact that it arose out of a domestic relationship but your attitude to, and perception of, that relationship, may serve to explain your violent reaction.

31 The courts, by the sentences they impose, must denounce the use of weapons such as knives, as a response to dysfunctional relationships. Violence of this type cannot be utilised as a problem solving technique. Further, the courts must impose sentences which deter other persons who might think of responding to relationship difficulties in this violent manner. It must be made clear that women are entitled to end relationships without being subjected to violence by resentful former partners.

32 That having been said, there are matters personal to you, which I must take into account in imposing an appropriate sentence. Before doing so, however, I wish to refer to the Victim Impact Statement of Sadia Abdurahman. Apart from referring to the residual physical disability to her left arm, which I have already mentioned, Ms Abdurahman states that the injury she sustained to the top of her right shoulder makes it hard for her to write for any length of time. Since the stabbing she has not been able to go back to work. She has no feeling in the back left half of her head because of the stab wound. She further states that your son Mohammed, who was present when the stabbing occurred, still has nightmares about it. Both of them are undergoing counselling. There can be no doubt that the trauma of this attack will have a long term emotional effect upon Ms Abdurahman.

33 Ahmed Ibrahim, you are presently 30 years old. You were born in Somalia and you have four brothers and two sisters. Your primary education commenced in Somalia but, when you were aged 14, because of the civil unrest in the region, you were taken to a rural setting before fleeing as a refugee to Egypt. You remained in Cairo until the age of 20. While in Cairo you attended high school attaining the equivalent of year 12.

34 In January 1996 an aunt sponsored the family to come to Australia and, on your arrival, you commenced a two year certificate course in accountancy through Kangan Batman TAFE. You completed only one year of this course before moving to Sydney to marry. Your father arrived in Australia after the rest of the family.

35 The family itself was hard working and reasonably prosperous in Somalia. Your father had confectionary shops which were lost as the result of the civil war in that country. I am instructed that your father, together with your mother and family members, all continue to support you.

36 As far as your employment is concerned, I am told that you are capable of hard work. After returning to Melbourne in 2001, you have worked in various factory jobs including at a mattress factory for 12 months and galvanising works for nine months. You also worked for an agency doing casual work where you would be sent to various and different factory locations.

37 The witnesses called on your behalf, to whom I have already referred, spoke of your concern for your children, your friendliness and non-violent nature. They also spoke of your remorse at what had occurred and your determination to get on with your life. One witness, Mr Yousif Mohammed, mentioned your interest in sport, playing for the Red Sea Soccer Club and coaching Yarraville Soccer Club. The chairperson of Somalia Inter-Riverine Community Development Association, Mr Awes Amin, wrote to the Court on your behalf describing you as a calm and docile person who had the respect of members of the community where you were regarded as being of good character. He lauded your efforts in organising sporting and recreational activities for Somali youth.

38 You have spent your time in prison in seeking to improve your education. This has involved undertaking a number of courses provided by Kangan TAFE. These include Certificates in General Education for Adults, Information Technology, Asset Maintenance, and Hospitality. These endeavours are to your credit.

39 You have two prior Magistrates' Court appearances. In December 2004 you received an adjourned bond at Melbourne Magistrates' Court for obtaining a financial advantage by deception. This involved the receipt of unauthorised Centrelink payments. It has no real relevance to the present case. The other convictions you have acquired were at the Geelong Magistrates' Court in October 2003 for causing injury recklessly and assault by kicking. It appears that this incident arose after you had been to a nightclub in Geelong and a dispute developed between you and your companion and the victim. You instructed your counsel that this incident occurred after the person assaulted, who was intoxicated, had insulted you by calling your wife a slut; saying that she went out with other men; and that she had kicked you out and you were nothing. I am not aware of the extent of this assault but I note that you received a 12 month community based order.

40 I agree with your counsel that the fact of these convictions does not indicate that you have a propensity for violence. What it does indicate, however, is that you have a capacity for violence and that specific deterrence must be given some weight in the sentences to be imposed in this case.

41 You have now been in gaol for about 1 year 9 months. Your conduct in prison, together with your past employment record, your family support, your service to your community through organising recreational activities, your remorse at what has occurred, and your determination to move on and make a new life for yourself, are factors which indicate that your prospects of rehabilitation are good.

42 Additionally, you must be given credit for your offer of an early plea of guilty to a charge appropriate to the 17 March incident. That plea has saved your former wife and the witnesses to the stabbing from the trauma of having to give evidence at a trial.

43 I also take into account the fact that, although you speak a level of English, your time in prison is likely to be more difficult than that experienced by an Australian born inmate. In this regard I note that you are taking Zoloft, an anti-depressant medication.

44 Whilst I have regard to the various mitigating factors, the offence of 17 March is, as I have said, a very serious one.

45 Balancing as best I can the principles of sentencing enunciated in the Sentencing Act, including punishment, denunciation, specific and general deterrence, I have determined that the appropriate sentences are as follows:

On the count of robbery you are sentenced to 6 months' imprisonment. In hindsight your initial offending may be seen as a prelude to the attack of 17 March and, in all the circumstances, I do not intend to order any period of cumulation upon your sentence for attempted murder.

On the count of attempted murder you are sentenced to 10 years' imprisonment.

I fix a minimum period of 7 years' imprisonment before you become eligible for parole. I further declare that the period to be reckoned as already served under the sentence is 639 days inclusive of today's date. I direct that there be noted on the records of the Court the fact that such declaration is made and its details.