R v Birkneh [2023] NSWDC 147

R v Birkneh [2023] NSWDC 147

The offence was objectively very serious because the offender entered the victim's home in the early hours by smashing a window, armed with a tomahawk and knife, pursued and attacked a defenceless victim with the axe in circumstances of domestic violence and in the presence of children, causing significant wounds and ongoing trauma. The offender's traumatic background and complex mental health conditions reduced his moral culpability to some extent, and his guilty plea, limited criminal history, cooperation and onerous custody conditions were mitigating, but imprisonment was the only appropriate sentence. Special circumstances were found because this was the offender's first time in...

Jurisdiction
Australia
Judgment Date
08 May 2023
Procedural Posture
Criminal Sentence / Sentence After Guilty Plea in the Local Court
Outcome
Ketema Birkneh was convicted and sentenced to imprisonment for 5 years and 3 months with a non-parole period of 3 years and 3 months, backdated to 18 September 2021.
Legal Topics
['specially Aggravated Break and Enter and Commit a Serious Indictable Offence' 'wounding With Intent to Cause Grievous Bodily Harm' 'domestic Violence' 'mental Health and Sentencing' 'guilty Plea Discount' 'apprehended Domestic Violence Order']
['criminal Law' 'sentencing'] ['specially Aggravated Break and Enter and Commit a Serious Indictable Offence' 'wounding With Intent to Cause Grievous Bodily Harm' 'domestic Violence' 'mental Health and Sentencing' 'guilty Plea Discount' 'apprehended Domestic Violence Order']

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Procedural Posture

Criminal Sentence / Sentence After Guilty Plea in the Local Court

Legal Issues

  1. 1 ['What sentence should be imposed for specially aggravated break and enter and commit a serious indictable offence, namely wounding with intent to cause grievous bodily harm, contrary to s 112(3) Crimes Act 1900 (NSW).' "How the objective seriousness of the offence, including violence in the victim's home and in front of children, should be assessed." "What weight should be given to the offender's deprived and traumatic background, complex mental health conditions, drug use, remorse, cooperation, criminal history and prospects of rehabilitation." 'Whether special circumstances justified a longer period of supervision on parole.']

Ratio Decidendi

The offence was objectively very serious because the offender entered the victim's home in the early hours by smashing a window, armed with a tomahawk and knife, pursued and attacked a defenceless victim with the axe in circumstances of domestic violence and in the presence of children, causing significant wounds and ongoing trauma. The offender's traumatic background and complex mental health conditions reduced his moral culpability to some extent, and his guilty plea, limited criminal history, cooperation and onerous custody conditions were mitigating, but imprisonment was the only appropriate sentence. Special circumstances were found because this was the offender's first time in...

Court Disposition

Ketema Birkneh was convicted and sentenced to imprisonment for 5 years and 3 months with a non-parole period of 3 years and 3 months, backdated to 18 September 2021.

Orders

  • ['Ketema Birkneh is convicted.' 'I impose a term of imprisonment of 5 years and 3 months with a non-parole period of 3 years and 3 months to date from 18 September 2021. The non-parole period will expire on 17 December 2024 and the head sentence will expire on 17 December 2026.' 'The offender will become eligible to...