R v Mohammed [2004] VSC 423

Supreme Court of Victoria|2004-11-08|Before: KAYE J.

CRIMINAL LAW - Sentence - Manslaughter - Intentionally causing serious injury.

K. Robertson, Solicitor to Office of Public Prosecutions

My first task in sentencing you is to form a conclusion as to the facts relating to the three counts on which you have been convicted. I shall proceed to do so mindful of the relevant principles, namely -

(a) that any finding by me must be consistent with the verdict of the jury;

(b) that I must be satisfied beyond reasonable doubt of any fact which might be relied on in aggravation of the offences for which you have been convicted;

(c) that I am required to be satisfied on the balance of probabilities of any facts which I take into account in mitigation of the offences or in mitigation of sentence.

The matters which were before the jury arose out of events which occurred at Ovens River Abattoir at Yarrawonga shortly after 7.00 a.m. on Monday 24 March 2003. At that time you had been employed at the abattoir for five weeks as a Muslim slaughterman. You were responsible for ensuring that cattle were slaughtered in the manner which conformed with the requirements of your faith.

Your job at the abattoir involved you using a knife to slit the throat of a beast after the beast had been stunned in the "knocking box", and saying a prayer at the same time. You were working in the section of the abattoir known as the "kill pit" alongside James Regan. After you had slit the animal's throat, Mr Regan's job was to then make a further cut to the throat of the beast, to divide the wisden (or food pipe), to clip the wisden, and then to proceed across the kill pit to operate a hoist by a control button which was located there.

Immediately before the incident, which was the subject of Counts 2 and 3 on the presentment, Mr Regan had divided and clipped the wisden of a beast which was then lying on the cradle into which it had fallen after it had been stunned in the knocking box. At the trial there was controversy as to what next occurred. However, two things were not in dispute. First, both you and Regan were very close to each other beside the cradle. Secondly, you slashed the back of the neck of Regan, and then inflicted four further stab wounds to Regan with your knife, one to his left shoulder, one to the inner part of his upper arm, and two to his left flank.

Your account to the jury was that, immediately before the incident, Mr Regan had called you a "fucking" terrorist, and had threatened you with his own knife, and that you had responded in self-defence by cutting the back of his neck with a round arm action and then stabbing him on the arm. Your evidence was that Regan then inflicted a slash wound to your right arm bicep, and that you responded by inflicting at least three further stab wounds to his side. Mr Regan's account was that, having clipped the wisden of the cow, he then turned to operate the hoist. While his back was turned to you, for no reason at all, you launched an unprovoked and wanton attack on him, inflicting a severe wound to his neck. Other witnesses who were called at the trial gave evidence that they saw you then stabbing Regan's back region with your knife. The jury's verdict on Count 3 was explicable either on the basis that they found that no occasion for self-defence presented itself to you, or alternatively, on the basis that while there was a possibility that you apprehended that you were about to be attacked by Regan, your response to that apprehension was totally out of proportion to the threat which you then perceived.

The injuries which were sustained by Mr Regan were indeed most severe and he is very lucky to have survived. He had a full thickness laceration to the posterior part of his neck, which reached from one ear to the other, and which cut through the underlying structures to the bone. The doctor who treated Mr Regan at the Alfred Hospital gave evidence that the injury was an extremely serious neck injury, and that it would take an extreme amount of force to inflict it. In addition, Mr Regan sustained a wound to the left shoulder blade which was five centimetres in depth, an injury to his left arm, and two injuries to his left flank. The stab wounds to the left flank were respectively 20 to 30 centimetres, and 15 to 20 centimetres in depth. I interpolate that the blade of the knife which you were using was measured to be 14.5 centimetres. The stab wounds to the flank penetrated Mr Regan's spleen, his left kidney, and his left adrenal gland. As a consequence, Mr Regan's spleen and left kidney were removed in surgery. Mr Regan suffered a massive loss of blood internally, from which he very nearly died.

As I have stated, there was controversy at the trial concerning the circumstances which immediately preceded the incident involving Mr Regan. There was also controversy at the trial as to whether, in the previous two weeks, you had been subjected to racial, religious and political vilification, in particular from Mr Regan and Mr Richardson, with whom you normally worked in the kill pit. You were born in Somalia, and are a member of the Muslim faith. At trial your evidence was that you had been subjected to vilification, taunts and goading, initially by Richardson, and more latterly by Regan, in the two and one half weeks which preceded the incident. It was in the context of that vilification that Regan, on 24 March, accused you of being a terrorist and, you say, threatened you with a knife. Your evidence was that during the previous two and one half weeks Regan and Richardson had questioned you, incessantly, about Osama bin Laden, Saddam Hussein, and the jihad, and your attitude to them. In addition, you maintained that Regan had humiliated you while you were praying in the space allocated to you by the abattoir, by flicking pieces of meat and blood at you, and by kicking you in the backside.

The jury's verdict that you were not guilty of attempting to kill Regan (on Count 2) is only explicable on the basis that, notwithstanding the violence of your attack on Regan, and the most serious wounds which you inflicted on him, your passions were so inflamed that you did not form the intent to kill him. The jury thus accepted that something happened between you and Regan which caused your temper to explode. Whatever occurred between you and Regan could only be understood as having such an effect on you, if it was the culmination of the type of vilification and taunts to which you say you were subjected in the two and one half weeks before the incidents. Thus I consider that it is implicit in the verdict that the jury accepted that you had been vilified over that period of time.

At trial, you were cross-examined extensively on this aspect of your evidence. I must say that I found the evidence which you gave concerning the actual incidents which occurred on 24 March 2003 to be unconvincing and contrived in a number of respects. However, and by contrast, I did find the evidence which you gave about the circumstances in which you found yourself in the previous two and one half weeks to be quite credible. If anything, it seemed to me that you had, in your evidence, understated a number of matters which had been previously put forcefully on your behalf by your counsel in cross-examination to Crown witnesses. Your evidence left me with the firm impression that on the Friday before these incidents - 21 March 2003 - you were near the end of your tether with what you perceived to be repeated goading and niggling to which you had been subjected at work. I accept that on that day you did go to management at the abattoir to complain. However, regrettably, the manager was not in his office when you went to complain. The unfortunate result was that you went home on the weekend with an unresolved sense of grievance. It was clear from your evidence, and the way you gave your evidence, particularly under cross-examination, that when you commenced your work on 24 March 2003 alongside Mr Regan, your feeling of grievance towards Mr Regan had not abated over the weekend. On your own account neither of you spoke to each other when you attended, and in your evidence you stated that you had warned Regan on the previous Friday not to speak to you about your religion, race or politics. Your demeanour when you gave evidence left me with the impression that by then the relationship between you and Regan was indeed very tense.

What happened next is difficult to unravel. I do not consider that you were a reliable or truthful witness concerning a number of the events which occurred at the abattoir on 24 March 2003. By its verdict on the alternative to Count 1 (manslaughter) and Count 3 (intentionally causing serious injury to Regan), the jury did not accept that you acted reasonably in self-defence. Your acquittal on Counts 1 (murder), and on Counts 2 and 5 (attempted murder), do not necessarily mean that the jury accepted your evidence as to the events which occurred on 24 March 2003. Nor do the verdicts necessarily mean that the jury did not reject your evidence concerning a number of the actions and statements attributed by you to Mr Regan, Mr Murphy and Mr True.

Equally, I have some reservations concerning aspects of the evidence of Mr Regan and Mr Richardson, and in particular their evidence concerning their attitude and conduct to you before the incidents of 24 March 2003. Their evidence on that aspect of the case was, to my perception, over-stated. They were too anxious to deny, sometimes in extravagant terms, any suggestion that they had vilified or goaded you. Further, the jury's verdict, in the context of the trial, connotes that it considered that something did occur between Regan and yourself which precipitated your attack on Regan. Mr Regan's evidence, and that of the Crown witnesses, do not adequately explain the injury to Mr Regan's neck, which resulted more from a slash-type blow with a knife, rather than a stab as described by the witnesses. That injury suggests that the start of the incident between yourself and Mr Regan was not observed by the other witnesses, who only saw you inflicting the subsequent wounds on him. On the other hand, the evidence of those witnesses does satisfy me that you did not simply stab Regan when you were close to each other at the end of the cradle, but rather that you continued to strike him with your knife as he sought to escape from you across the kill floor. At the stage at which the witnesses such as Barton, Lewis and Relf saw Regan being stabbed by you, he was clearly trying to escape from you, but you continued to attack him.

Consistent with the verdict and the evidence, I accept that something happened between you and Mr Regan, immediately before the incident which gave rise to Count 2, which caused you to lose complete control of yourself, so that you did not have the intention to kill Regan, notwithstanding the severity of the blows by which you stabbed him. I am satisfied that something was said or done by Regan which, in the tense atmosphere which had then developed between you, caused you to lose control of your temper and to explode in rage. In re-examination you stated that at that time your brain was too emotional, "too high", and that you were not in control of yourself. I consider that that is an accurate description of your then mental state. Whatever Regan said or did to you, I am satisfied that it significantly built on the vilification and abuse to which you had been subjected in the previous two weeks or so. Your temper erupted, and then you inflicted what can only be described as a savage wound to the back of the neck of Mr Regan. You then continued to use your knife viciously towards Mr Regan, inflicting the wounds which I have already described. It is clear that the jury accepted that, notwithstanding the violence of your attack on Mr Regan, and the extremely serious wounds which you inflicted on him, such was your loss of control that you did not have the intention to kill Regan.

It was submitted on your plea that I should be satisfied, on the balance of probabilities, that Mr Regan had threatened you in the manner which you described in your evidence at the trial, and that, when you struck the initial blow to his neck, you acted in self-defence. As I have stated, it is difficult to unravel precisely what occurred between yourself and Mr Regan in the critical moments before you stabbed him. I have reservations about your evidence on this aspect of the case. However, I do accept that Regan did accuse you of being a terrorist while your back was turned to him. I accept that when you turned to face him, he was close to you, and was holding his knife. It was then that you reacted, violently and savagely, by striking him with your knife on a number of occasions. With some hesitation I accept that, in the circumstances, you subjectively felt somewhat threatened. However, from the outset, your response was predominantly one of anger and went well beyond any concept of self-defence. In your own words, you were out of control, and in a highly emotional state. Thus I do accept, in mitigation, that there was an element of subjective self-defence involved in the initial blow with which you struck Regan. However, thereafter, your predominant, if not sole, emotion in continuing to strike Regan was one of uncontrolled rage rather than any sense of self-preservation.

Having launched your attack on Regan, you then ran out of the kill pit. Mr Barton, who was in the knocking box, saw you coming and left before you. The evidence of both Mr Barton and Mr Hodgkin makes it abundantly clear that you chased Mr Barton to the maintenance shed when you had caught sight of him. You have not been charged with any offence relating to Mr Barton. Its only relevance to the question of penalty is that it provides the setting or background in which Mr Murphy arrived on the scene. It adds to the picture that you were out of control when Mr Murphy came around the corner to go to the maintenance shed.

At that time you were trying to force your way into the maintenance shed using your knife. Mr Murphy arrived and asked what was going on. You then inflicted four wounds on Mr Murphy with your knives, two of which were fatal. You first stabbed him in the right shoulder. You also cut his left thumb when he was trying to defend himself. You then inflicted the two fatal wounds, one to the left flank, and one to the right flank. The stab wound to the right shoulder measured six centimetres in depth. The stab wound to the right-hand flank passed through the ribs, and penetrated the liver, large bowel and mesenteric route. It was 17 centimetres deep. The stab wound to the left flank, which was 13 centimetres deep, passed through the diaphragm, kidney and spleen.

Your account was that Mr Murphy, after saying to you, "What are you doing here?" also said to you, "Fucking black, you killed Regan and I am going to kill you." In your evidence you claimed that Mr Murphy then grabbed your arms, that you were in fear that he was trying to get your knives to kill you, and that you stabbed him in self-defence.

The jury's verdict on Count 1, that you are guilty of manslaughter, reflects that the jury were persuaded beyond reasonable doubt that you were not acting reasonably in self-defence when you stabbed Mr Murphy. The jury's verdict that you are not guilty of murder, but guilty of manslaughter, may be explained on one of two possible bases. The jury may have been satisfied beyond reasonable doubt that you intended to kill or cause really serious injury to Mr Murphy, but may not have been satisfied that you were not provoked by what you claimed, in your evidence, to have been said to you by Murphy shortly before you killed him. Alternatively, the jury may have considered that, because of your loss of self-control, it was not satisfied beyond reasonable doubt that you possessed an intention to kill Murphy or to cause him really serious injury. On that alternative view, the jury convicted you of manslaughter by an unlawful and dangerous act.

Having had the opportunity to observe your evidence, I have no hesitation in concluding that the correct construction of the jury's verdict, and the correct view of the facts, is that, because of your loss of self-control, the jury was not satisfied beyond reasonable doubt that you intended to kill Mr Murphy or cause him really serious injury. I reach that conclusion for two principal reasons.

First, I consider that your account of what occurred outside the maintenance shed to be wholly contrived and beyond credulity, beyond belief. I have no hesitation in rejecting that account. I have no doubt that Mr Murphy did not say the words "Fucking black, you killed Regan and I'm going to kill you". I reject your claim that Mr Murphy uttered those words to you for three reasons which I now outline:

(a) It is most unlikely that Mr Murphy had had the time to learn that you had stabbed Regan before he came upon you trying to force your way, with a knife, into the maintenance shed, in which Barton had sought refuge from you.

(b) In cross-examination, you claimed that Mr Murphy said those words ("Fucking black, you killed Regan and I'm going to kill you") in a louder voice than he said the words which preceded them, namely "What the fuck are you doing here?" Yet Mr Barton, who was on the other side of the door of the shed, did hear you say words to the effect "What the fuck's going on here?" but did not say that he heard Murphy say "Fucking black, you killed Regan and I'm going to kill you."

(c) Significantly your counsel cross-examined Mr Barton in some detail. However he did not put to Mr Barton in cross-examination - as he would have been obliged to do if it was then part of his instructions from you - that Mr Murphy had said to you the words "Fucking black, you killed Regan and I'm going to kill you."

Secondly and conversely, I do accept that when Mr Murphy came upon you outside the maintenance shed you were in a violent rage. In your own evidence, you stated that when you stabbed Regan you were out of control, and that your emotional state had not altered between the time when you stabbed Regan and the time when you stabbed Murphy. That evidence is consistent with the objective facts. Your actions and conduct bespeak a man who had lost control of his temper, and was in the grip of a violent rage. The jury's verdict on the charges relating to Mr Regan (Counts 2 and 3) and to Mr True (Counts 5 and 6) reflect that, from the beginning to the end of this tragic series of incidents, you were so enraged that the jury was not satisfied beyond reasonable doubt that you intended to kill Regan, Murphy or True, or that you intended to cause Murphy really serious injury. The jury's verdict on the counts relating to Mr True is only explicable on the basis that, when you came upon Mr True, your mental state was still so affected that, notwithstanding the serious injuries which you inflicted on Mr True, you did not have an intention to kill him.

On your plea Mr Desmond submitted that the primary issue run on your behalf at trial was provocation, and not your mental state, when you stabbed Mr Murphy. He therefore urged that I should accept that the jury acquitted you of murder, and found you guilty of manslaughter, on the basis that, although you intended to kill Mr Murphy or cause him really serious injury, Mr Murphy had, by his words and actions, associated himself with the provocation previously proffered to you by Mr Regan.

It is correct that in his final address Mr Desmond did give more emphasis to the issue of provocation, rather than to the issue of your intention, at the time at which you stabbed Mr Murphy. However, he did submit to the jury that they should not be satisfied beyond reasonable doubt that you had formed an intention to kill or cause really serious injury to Mr Murphy. Further, until final address, the cross-examination of the Crown witnesses, and indeed your own evidence, was directed at least equally, if not more, to the issue whether you intended to kill or cause really serious injury to Mr Murphy, rather than to the issue as to whether he had provoked you. Nothing was put to Mr Barton in cross-examination suggesting that Mr Murphy said anything which could have provoked you. In your own evidence, you did not say that the words, which you allege Mr Murphy said, had inflamed you or caused you to lose control of yourself. Nor did you give evidence that you perceived that anything that Mr Murphy said to you associated Mr Murphy with the provocation given to you by Mr Regan. Rather, your own evidence was that you were too emotional and not in control, from the time at which you had had your confrontation with Mr Regan in the kill pit, until the time when Mr Murphy came to the maintenance shed door.

I therefore accept without hesitation that Mr Murphy innocently came upon you while you were trying to force your way into the maintenance shed using your knife. Mr Murphy was there for no other reason than to go about his lawful business which, as the maintenance manager, involved him going to the maintenance shed. In those circumstances it is not surprising that Mr Murphy asked what was going on. Your response was to turn your anger and your rage, which you had been directing at Barton, onto the hapless Mr Murphy. Mr Murphy tragically happened to be in the wrong place at the wrong time through no fault of his own. I am satisfied beyond reasonable doubt that he did nothing at all to give you the slightest cause to turn on him and to attack him savagely and cruelly with your knife. The nature and the severity of the blows are eloquent evidence that at that time you were out of control, that you were enraged, and that you had turned on Mr Murphy as someone on whom to vent your feelings.

Having inflicted the fatal blows on Mr Murphy, you then chased him over a distance of about 160 metres, brandishing your knife at him, before he was able to gain refuge in the office near the front of the premises. That chase was described by two witnesses, and I am satisfied that that chase was a continuation of the indiscriminate rage which you were venting on Mr Murphy.

Just outside the office into which Mr Murphy and Mr McCartin had escaped, you came upon Mr True. Mr True had heard of what had happened to Mr Regan, and was making his way to the office. Mr True's evidence was that when you caught sight of him you stopped running, and commenced to walk towards him, and that he started to backpeddle towards the office. When you kept coming, he tried to escape through the garden, which is on a slope, next to the office. However, he fell and landed on his stomach when he did so. You jumped on his back. True rolled over. You were holding your knife with your arm bent and with the point down. True struggled desperately with you and grabbed the knife in his left hand. He then managed to roll onto the bitumen, get onto his feet, and escape through the main gate. You chased him out through the main gate over a distance of more than 50 metres. At one stage you chased him around a utility, and you climbed onto that utility to try to get to him. True then ran back to the main gates with you in pursuit. He was assisted through the gates which were then closed.

Your account of that incident was to different effect. Your evidence was that you endeavoured to escape from the premises when Mr True attempted to intercept you. You claimed in your evidence that a struggle then ensued outside the main office, and that the pair of you fell into the garden on your sides. You were concerned that Mr True was trying to get your knives, both of which were in your hands. True then ran off through the main gates. You continued to run to the main gates to escape. A vehicle came from your right trying to chase you, so you ran to your left, happening to run in the same direction as True. You jumped onto the utility to escape the vehicle that was chasing you. Mr True then ran back through the gates and you went to your car which was parked opposite the gates.

As a result of the struggle in the garden bed Mr True sustained serious injuries and had to be flown by aeroplane to the Royal Melbourne Hospital. His injuries included a deep laceration to the right flank, which divided the tip of the twelfth rib. As a result of that laceration Mr True, on laparotomy, was found to have haematoma surrounding the right kidney. Mr True also suffered a four centimetre superficial laceration to the left shoulder blade, a four centimetre mid-thoracic laceration which penetrated muscle and went on to the vertebral bones, and a number of injuries to the left hand. The principal injury to the left hand was a deep laceration to the middle of his palm going through the web which required 15 stitches. He also suffered two severe lacerations to the right arm, one to the forearm, and one to the elbow area.

The jury's verdict, that you are not guilty of attempting to murder Mr True, but guilty of intentionally causing him serious injury, does not of course mean that the jury accepted your account, or that it was not satisfied beyond reasonable doubt that your account was untrue. The jury's verdict is also explicable on the basis that it was not satisfied beyond reasonable doubt, on the evidence called by the Crown, that you intended to kill True, because when you attacked him you had so lost your power of reason and self-control that you did not form that intention. In my opinion, the correct view of the jury's verdict, in conformity with the facts, is the latter view, namely, that the jury was not satisfied beyond reasonable doubt that you intended to kill True because, notwithstanding the severity of the injuries which you inflicted on him, you had so lost your grip on yourself that you did not possess the intention to kill him.

I reach that conclusion for two principal reasons. First, I found your evidence on this aspect of the case to be utterly unconvincing and, indeed, incredible. Your explanation of your actions were beyond belief. They do not explain the lacerations to Mr True's back. By contrast, Mr True's evidence was credible, frank and coherent. It was confirmed by the eyewitness Hodgkin (as to the incidents which occurred outside the main office), and by the witnesses Munro and Anderson (as to the incidents which occurred in the car park).

Secondly, in re-examination you stated that when you came upon True your emotional state had only improved a little from the time when you stabbed Regan and Murphy. It was clear from the evidence that you were still in a violent rage as you ran towards the main office, with your knives still held in your hands. You were in that frame of mind when you came upon Mr True. Your actions, as described by the witnesses, are clear evidence that at that time you continued to be out of control, and that your loss of self-control is the appropriate explanation of the jury's verdict in relation to the counts concerning Mr True.

I now turn to matters relating to your personal background. You are now 26 years of age, having been born in Mogadishu, Somalia, in January 1978. You lived in Somalia until you were 13 years of age. At that time there was a civil war in Somalia. In your evidence you described the violence which was prevalent in your country at that time. There was much bloodshed and conflict. Weapons, including knives and guns were commonly used. You stated that, in order to survive, if someone faced you with a knife, you had to act, and that it was fatal to wait.

At the age of 13 your family fled to Kenya, where you stayed as refugees until you were 18 or 19 years of age. Your status as illegal refugees made you, and your fellow countrymen, prey to corrupt police officers who would rob you of whatever possessions you had, and would rape the women. Life was hard and violent. During that time you described how you had flashbacks about the civil war in Somalia. You left Somalia and lived in Ethiopia for one year, where the nature of your existence improved. You then made your way to New Zealand as a refugee, where you lived for four years and obtained citizenship. You worked mainly as a fruit picker and packaging fruit.

After four years in New Zealand you returned to Somalia to see your family members. However, civil war had erupted again, and so you came to Australia in July 2002.

At first you obtained work in Mildura picking fruit. You then obtained employment at the Yarrawonga Abattoir. You had no previous experience as a slaughterman. You had two to three days' training, and commenced work at the abattoir four to five weeks before the incident. At that time you were living in Mulwala with Mohammed Aden, the other Muslim slaughterman engaged by the abattoir. It was clear that you were not close to Mr Aden, and that he was just an acquaintance to you. Further, your only relative in Australia at that time was an aunt who was living in Melbourne. Since the day of the incident you have been on remand at Port Phillip Prison, where you have taken classes in the English language.

In the course of his plea on your behalf, Mr Desmond, your counsel, tendered a report of Dr Alan Jager, forensic psychiatrist, who examined you on 4 October 2004. Dr Jager expressed the view that you had experienced chronic post-traumatic stress disorder as a result of your adverse developmental history in which you were exposed to civil war, the violent deaths of friends, and the destruction of your home, followed by the difficult times as a refugee. Dr Jager expressed the view that you continue to suffer some symptoms of that disorder. He also states that your exposure to the horrific war time events in Somalia sensitised you to a sense of danger and most likely contributed to the severity of your response when you believed yourself to be in danger on 24 March 2003.

Dr Jager does not indicate on what precise basis he diagnosed that you suffered from a stress disorder. Quite correctly Mr Desmond did not rely on the report to support the proposition that you suffered from a mental disorder which, at the time of the offending, would have reduced your culpability. Rather, he relied on the aspect of the report concerning your exposure to violence in Somalia, which, he contended, sensitised you to danger so that you reacted as you did when confronted by Mr Regan.

I accept that your background in Somalia accustomed you to danger and violence. I also accept that the events which you experienced in your youth, and during your critical developmental years, were turbulent and threatening. However, I doubt that Dr Jager was expressing a clinical view when he referred to your past having "sensitised" you to a sense of danger. In any event, as I have found, your reaction to your initial confrontation with Mr Regan went well beyond any reaction to mere danger. From the outset there was, coupled with it, a total loss of control over the anger precipitated by what you perceived to be further vilification and abuse directed to you as a Muslim from Somalia.

The offences for which you have been found guilty are, by their very nature, serious offences. The maximum penalty, both for manslaughter, and for intentionally causing serious injury, is 20 years' imprisonment. As has been pointed out in a recent decision of the Victorian Court of Appeal, the offence under s.16 of the Crimes Act (of which you have been found guilty in relation to Mr Regan and Mr True) involves, not only the infliction of serious injury, but an intention to cause that serious injury to the victim involved.

As I have already found, I accept that, immediately before you stabbed Mr Regan, you were provoked by him. I also accept that you had been subjected to provocation, in the form of vilification of your race and religion, for a period of two and one half weeks, first by Mr Richardson, and latterly by Mr Regan. The combined effect of that provocation, as it accumulated within you, was to cause you to explode with anger towards Mr Regan. I also accept that at the time of the offences you were isolated, lonely and vulnerable. There was only one other Somali Muslim employed at the abattoir, and it was clear that you were not on close or friendly terms with him. It was therefore difficult for you to cope with the provocation, and there was no-one to whom you could turn for comfort or advice. I also accept that to some extent at least your response to the provocation was effected by your background in Somalia, and by the traumatic incidents and harsh life to which you were exposed there and subsequently in Kenya.

On the other hand, the offence of intentionally causing serious injury to Mr Regan has a number of aspects indicating a significant degree of culpability on your behalf. The blows which you inflicted on Mr Regan involved considerable violence. As Dr Weymouth stated, it required an `extreme amount of force' to inflict the injury to the neck. You then continued to stab Mr Regan on at least four further occasions with significant force. It is clear from the evidence of those who saw the subsequent blows that Regan was then trying to retreat, and that you continued to inflict the blows on him. At least some of those blows were struck when Mr Regan's back was either partially or fully turned to you. The injuries inflicted by you were very severe, and, as I have stated, Mr Regan is extremely fortunate to have survived. The injuries, and Mr Regan's long and difficult period of recuperation, placed a significant strain on both Mr Regan and his wife. The victim impact statements of Mr Regan and Mrs Regan understandably describe the profound and lasting effects which the traumatic ordeal has had and continues to have on them.

In relation to Count 1 - of which you are found guilty of the manslaughter of Mr Murphy - I accept that the offence was not premeditated and that you turned on Mr Murphy as he arrived at the maintenance shed. Further, you still did not have control of your emotions. On the other hand, there are a number of particularly serious features relating to the offence. I am satisfied that there was no provocation offered to you by Mr Murphy. He was, in every sense, an innocent victim, who was entirely blameless. You vented your rage on Mr Murphy with two sharp knives, notwithstanding that he was unarmed and defenceless. You were not content with stabbing Mr Murphy on the shoulder. You also stabbed him to each flank, inflicting the fatal wounds on him. By your actions you have taken an innocent man's life from him. You have deprived him of the opportunity to see his children grow, and to share their lives with him, alongside his devoted wife. You have robbed a wife of her loving husband, children of their devoted father, and a close family of a cherished brother and brother-in-law. The victim impact statements, which have been tendered in evidence to me, and which I have read, reflect the anguish, grief and loss, to those who loved him, which are a direct consequence of your actions. Their pain and loss will always be with them. They are truly innocent suffering victims of your violent rage.

In relation to the offence of intentionally causing serious injury to Mr True, I accept that you were still out of control and in a state of rage, when you stabbed him. I also accept that the blows which you struck to Mr True were not as severe as those which you struck to Mr Regan, but nevertheless the jury verdict is that you intended to cause serious injury to Mr True as you did. On the other hand, you had had more time to recover your loss of control before you came upon Mr True. You had run at least 160 metres from the time when you stabbed Mr Murphy until you attacked Mr True. Further, Mr True was entirely blameless. He did nothing to provoke you or cause you to set upon him. From an early stage as you approached him he tried to retreat but you still came at him. You then proceeded to attack an unarmed defenceless man with two sharp knives. When Mr True fell on his stomach you stabbed him at least three times to the back while he was in the position of total helplessness. You struck repeated blows to Mr True. The injuries which he sustained were severe. The victim impact statement of Mr True shows - as one would expect - that he has suffered considerable pain and injury, and that he has, to this day, to live with the dreadful trauma of the terrifying ordeal to which you subjected him.

The report of Dr Jager suggests that you are remorseful concerning the events of 24 March 2003. I had the opportunity to observe you throughout the trial. In particular, I observed you closely while you gave evidence in the witness box for a period of two days. I am mindful of the limitations of making any assessment from your demeanour because of your restricted command of the English language, and because of cultural considerations. Nevertheless, as I observed you, I formed the strong view, both from the substance of your evidence, and from the manner in which you gave it, that you have no remorse at all for your actions of 24 March 2003, or for the tragic consequences to other people which have resulted from your actions. You consider yourself innocent of any wrongdoing, and have, I consider, little or no insight into the seriousness of what you have done, or into the pain and grief which you have inflicted on others as a result of your conduct. Accordingly, I do not accept that you have remorse for your actions.

The offences upon which you have been convicted and upon which I must sentence you are very serious. They were committed in circumstances of significant gravity, involving substantial and frightening violence. You repeatedly stabbed your victims. Two of them were unarmed and defenceless. Your attack on those two, in particular, was cowardly. You have unlawfully taken the life of an innocent human being. Your attack on Mr Regan went well beyond any reaction to any threat which you perceived he posed to you. You stabbed Mr Regan with considerable and brutal force, and continued to do so after you had clearly incapacitated him. The provocation to which you had been subjected is a mitigating circumstance, but does not justify the vicious assaults you unleashed on Regan, nor the subsequent attacks by you on Murphy and True. Your actions have caused, and will permanently cause, irreparable loss, pain, grief and suffering.

The sentence which this court is to impose must constitute a just punishment for your crimes. In a case such as this, involving an unacceptable and savage level of violence, it is important that this court, by its sentence, sends a clear message to the community that it will not tolerate such conduct. It is important that the sentence which I impose act as a deterrent to others. The sentence must also constitute a proper condemnation by this court of your actions. Further, the sentence must be sufficient to deter you personally from any similar conduct, upon your release from prison. I also take into account the fact that the sentence which I impose on you must suitably protect the community from you.

On the other hand, the sentence must and does take into account the mitigating factors I have already referred to. In particular I take into account the fact that you were initially provoked before the incident involving Regan. I take into account that you have come from a troubled and turbulent background and, as a young man, have not had the opportunities which many in this community take for granted. Further, although it was not argued on your behalf, I do take into account that a term of imprisonment may bear harshly on you, given that you will be of a different cultural, ethnic and religious background to the majority of the prison population. I would expect that you will feel somewhat isolated in prison, given that you only have one living relative in Australia, an elderly aunt living in Melbourne, who is blind.

I am satisfied that you are a serious violent offender under Part 2A of the Sentencing Act. However I do not consider it appropriate to invoke the provisions of that part in sentencing you. Applying normal criteria, and without invoking that part of the Act, the sentence which I shall impose on you is substantial, and I do not consider it is necessary or just to utilise Part 2A to increase that sentence in this case.

You have been convicted of three crimes. I consider that it is appropriate that the sentences which I impose for each of those three crimes be served, in part, concurrently. The three offences were connected in time, place and circumstance. Further, the principles which I must apply require that the sentence, in totality, is not excessive and is to be proportionate to your overall wrong doing. The incidents relating to Counts 1 and 3 were more closely related in time to each other than the incident relating to Count 6, and that circumstance will be reflected in the orders which I make for concurrency. I also consider that I should fix a minimum sentence which allows for a sufficient period of parole to enable your return to the community to be appropriately managed and supervised.

Bearing in mind the factors which I have been outlining to you, and bearing in mind the verdicts of the jury, I now sentence you accordingly as follows -

(a) on Count 1 (the manslaughter of Peter Edward Murphy) I sentence you to 10 years' imprisonment;

(b) on Count 3 (intentionally causing serious injury to James Michael Regan) I sentence you to seven years' imprisonment;

(c) on Count 6 (intentionally causing serious injury to Michael John True) I sentence you to seven years' imprisonment.

I direct that two years of the sentence on Count 3, and three years of the sentence on Count 6, be each served cumulatively upon your sentence on Count 1, and upon each other, making a total effective sentence of 15 years' imprisonment. I direct that you serve a minimum term of 12 years' imprisonment before you become eligible for parole.

Pursuant to s.18(4) of the Sentencing Act I declare that the period of 596 days be reckoned as already served under the sentence which I impose. I shall cause a notation to be made in the records of the court that that declaration was made.

At a glance

Court

Decision date

Before

Source

Judgment (58 paragraphs)

Parties