The Queen v Debresay [2016] VSC 804

2 On Thursday 12 May 2005, Jennifer Louey and her children stayed overnight at your unit. You were present at the unit continually from about 10.30 pm onwards. When you returned to the unit at this time, the children were in the lounge room. K H was in her pram, Tonnja and A L were on couches. It is not clear to me whether they were asleep or not at this time. At some stage during the evening or early morning, you left your bedroom and entered the lounge room. In various accounts, Jennifer Louey has described hearing a loud bang from the lounge room area that immediately preceded your exit from the bedroom.

3 On 13 May 2005, A L described to police and his family members what he saw occur. He told them that Tonnja was crying and you took her to the kitchen area. He said Tonnja was sick and you told her to sit down on the kitchen floor. He said that Tonnja had done 'wee wee on the couch' and that Tonnja was naughty. He said that you stepped on Tonnja and demonstrated a stamping or stomping motion. By its verdict, the jury must have accepted this account. Tonnja was not taken to a doctor immediately or even soon. You and Jennifer Louey remained in bed until 9.30 am or 10.00 am. The children remained in the lounge room.

4 At about 12.15 pm, a friend, Samantha Barry, visited your flat. She was the children's regular babysitter. She saw Tonnja laying on the coffee table with her feet on the floor. Tonnja's eyes were open but she was drowsy. You picked her up and sat her up on a chair. I consider that by this time Tonnja must have been in discomfort and obviously unwell. Samantha left, and some time after that Jennifer, you, and the children left to walk to a coffee shop in Nicholson Street, Footscray. I am unable to say whether Tonnja walked for some of this trip or if she was carried for the entire journey.

5 At about 2.30 pm, Filmonn Gerussis, a friend of yours, saw Tonnja sitting on her mother's lap looking unwell. Others observed that she appeared to be asleep.

6 At about 3.00 pm or a little after, Tonnja became unresponsive in her mother's lap. Only then was medical help sought. It appears that you were are not present for some of this last phase of Tonnja's life and that Jennifer Louey was waiting for you to reach the coffee lounge before taking Tonnja to the medical centre.

7 I emphasise that it is not my function to sentence Jennifer Louey for her many failings as a mother. I have been careful not to impute those failings to you, and I shall sentence you on the basis of the evidence against you that has resulted in your conviction. Consistent with that, and considering the context of your relationship with Tonnja, I do not take into account any earlier injuries sustained by Tonnja as I am not satisfied that they were caused by you. Similarly I am not satisfied beyond reasonable doubt of certain additional details provided in some of A L's later accounts. Specifically I am not satisfied that any headbutt, hit or kick (as opposed to stomp) was directed at Tonnja or A L during the relevant event.

8 You and Jennifer Louey arrived with Tonnja at the Millennium Medical Centre at about 3.10 pm. Tonnja could not be revived. You did not advise any of the medical staff of the potential for abdominal injuries, although you appeared to show distress when advised that Tonnja had died. You pleaded with paramedics to continue their efforts to revive Tonnja.

9 At post-mortem Professor Ranson made the following observations, amongst others:

• Tonnja had sustained widespread soft tissue injuries to the head, neck, arms, legs, abdomen, chest and back.

• Internally, Tonnja had sustained a ruptured pancreas and proximal jejunum lacerations to the mesentery and the liver, a ruptured bowel and widespread internal bleeding.

• The injuries were consistent with an application of blunt force to the abdomen, having the effect of squeezing the abdominal contents between the object applying the blunt force and the vertebral column at the back of the abdomen.

10 In evidence, Professor Ranson expressed the view that the abdominal injuries observed would have required significant blunt trauma force. He said that an injury of this type is likely to cause significant pain and result in the individual gradually becoming faint, weak and drowsy.

11 I propose to sentence you on the following basis:

• You caused the fatal injuries by stomping or stamping on Tonnja's trunk at least once as she lay on the floor of the kitchen area in your flat.

• This action was carried out with significant force.

• You intended to hurt or harm Tonnja but you did not intend to cause her really serious injury or death.

• Your action or actions were the product of anger and/or frustration probably at your discovery that Tonnja had urinated on your couch. These actions were spontaneous.

• The prosecution contend that your failure to alert the medical staff as to the likelihood that Tonnja had suffered abdominal injuries is an aggravating feature of your offending. It is true that by the time you had the opportunity to do so Tonnja was either dying or more likely dead, and had you alerted doctors then the outcome would have been unchanged. Notwithstanding this, you knew Tonnja was at least gravely ill, you knew resuscitation efforts were underway, you must have known that there was a genuine prospect that her illness was related to abdominal trauma, you had the opportunity to alert the paramedics and doctors to this prospect and you did not. Having said this, I regard this potentially aggravating feature of your offending as overwhelmed by the objective seriousness of the causative act itself, and I have not increased the sentence that I shall impose on account of this feature.

12 I turn to your background and current circumstances.

13 You are now 38 years old. You were born in Eritrea. Your parents separated when you were a baby and you have been raised by your mother. You have two sisters. Members of your family had been present throughout your appearances in this Court and they remain staunchly supportive of you. You arrived in Australia in 1992 when you were 14 and lived with your family for a couple of years before moving into relatively unstable accommodations. You commenced but did not complete a motor mechanic's apprenticeship, went back to school for a time, assisted your mother in a traditional African restaurant and then worked for a company installing air conditioning units. You worked as a forklift driver and in a factory assisting in the assembly of tractors. You also obtained a security agent's licence in 2001, which you used intermittently.

14 You have a son now aged 16½. He is the product of a four year relationship that ended before you met Ms Louey. Your relationship with Ms Louey has been on and off, although Ms Louey maintained during the trial that it continued to the present. In 2013, your daughter was born to Ms Louey. This child was removed from your joint custody by the Department of Human Services. This appears to have had some impact upon your mental state, and I shall refer to it again shortly.

15 Since Tonnja's death, you have lived an unsettled life. You have lived with your sister and your mother, in various crisis accommodation houses, in Housing Commission flats for three years, and then in Werribee for a year, all whilst maintaining your intermittent relationship with Ms Louey and occasionally living with her. I accept that throughout the last decade you have lived with the spectre of a police investigation hanging over you. You were interviewed by police in May 2005, and again in September 2005. In 2008, you were advised by the OPP that there was insufficient evidence to prosecute, but in 2013 an inquest found that one of you or Ms Louey was responsible for Tonnja's death. You were charged in May 2015 with Tonnja's murder. The anxiety and uncertainty associated with this delay can constitute a form of punishment itself, and I take it into account in your favour. I also take account of the fact that since 2005 you have kept relatively clear of trouble and have exhibited a solid work ethic. These factors impact upon my assessment of your prospects for rehabilitation to which I will return shortly.

16 I also accept that in the last few years you have developed a quite serious mental illness. Dr Anthony Cidoni, consultant psychiatrist, has prepared a report after interviewing you on 3 November 2016. He does not suggest that mental illness played any part in your offending, but expresses the opinion, which I accept, that you currently suffer from a major depressive disorder accompanied by associated anxiety and panic. Amongst the material Dr Cidoni was supplied with was a discharge summary from Alfred Psychiatry dated 23 September 2014. This documents a long history of suicidal ideations, self-harm, overdoses and frank suicide attempts. The context for your 2014 admission to the Alfred Psychiatric Unit was the removal from Jennifer Louey's care of your daughter.

17 During your plea, a more comprehensive Alfred Psychiatry discharge summary was tendered, together with the health records from the Department of Justice, collated during your time in custody. These records set out various suicidal ideations and thoughts of self-harm. In addition, they document panic attacks which have occurred in custody since your conviction, and on one occasion in this Court. Dr Cidoni was of the view that there is a significant risk that your depression and anxiety will deteriorate further after sentence. I accept this.

18 I am satisfied that, as a consequence of your major depressive disorder, accompanied by anxiety and panic, the hardship experienced by you whilst undergoing the sentence I must impose will be greater than if you were not suffering from this mental illness. I am further satisfied that there is a serious risk that imprisonment could have a significant adverse effect upon your mental health. I have moderated the sentence I will shortly impose to reflect these considerations.

19 Associated with this aspect of hardship, although not arising from psychiatric illness, I accept that the nature of your offending may lead to abuse and vilification in the prison environment, with accompanying anxiety to you. This may exacerbate your mental illness and it may act independently to increase the level of hardship that you will encounter. I also take this aspect into account in your favour.

20 There are other factors that operate in your favour. Letters have been tendered attesting to your good character and underlying generosity. You have an insignificant prior and subsequent criminal history, and I consider you to be, effectively, a first offender. You have a solid work record and I consider your prospects for rehabilitation to be sound. You will need successful treatment for your mental illness and to deal with your substance abuse problems. Assuming these issues are satisfactorily addressed, then I assess your prospects for rehabilitation to be extremely good.

21 Your trial was run efficiently by making appropriate concessions and admissions. Your counsel could not have run the trial this way without instructions, and you are entitled to some modest sentencing benefit for this.

22 I have set out the factors that operate to moderate the sentence that I must impose. There are, of course, competing factors that also must impact upon your sentence. The first and most important is the objective gravity of your offending; in other words, the seriousness of it. You assumed responsibility for Tonnja's welfare. At just two years of age, her vulnerability to you was absolute. Your abuse of her through the imposition of physical force was also absolute. Judges of all courts in this State have repeatedly emphasised the gravity of abuse of the vulnerable in our community. I gratefully adopt the words of Vincent J:

... The true value of any community must be assessed in terms of the degree of genuine recognition that it gives to the rights and dignity of its most vulnerable and disadvantaged members.[1]

23 Whilst your offending was the spontaneous product of anger and frustration, so is most offending of this type. Our children place their complete trust in their adult guardians. You brutally betrayed the trust that that little girl placed in you. I regard your objective criminality as very high. For this reason, I consider that the sentencing purposes of general deterrence, denunciation and punishment must weigh heavily in the sentencing mix. If this sentence deters just one adult from abusing a child then something positive can come from this tragedy. I doubt that it is necessary to attach much weight to specific deterrence.

24 I have listened to and read various Victim Impact Statements. They speak eloquently and movingly of the suffering that you have caused. I am obliged to and do take them into account. Stand up, please.

25 Balancing these competing factors as best I can, I sentence you to 11 years' imprisonment with a minimum of eight years to be served before you become eligible for parole.

26 I declare that you have served 307 days by way of pre-sentence detention, inclusive of today.

[1] R v Dempsey [2001] VSC 123, [7].