R v Nindagiye [2019] NSWDC 811

District Court New South Wales

Medium Neutral Citation: R v Nindagiye [2019] NSWDC 811 Hearing dates: 16 August 2019 Decision date: 16 August 2019 Jurisdiction: Criminal Before: Haesler SC DCJ Decision: Sentenced to a term of imprisonment of 4 years. Non parole period of 2 years 2 months. Catchwords: SENTENCING – Detain without consent – intimidation – infliction of actual bodily harm – domestic context. SENTENCING – Relevant factors on sentence – offender recent victim of serious assault – impact of anxiety, depression and paranoia – verbal argument becomes violent – serious violence toward partner – use of machete – choking – use of other weapons – plea offer initially rejected – victim detained – abuse of power against victim in a vulnerable position – no excuse for domestic violence – strong family support – remorse or regret? – victim vindication required. Legislation Cited: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Cases Cited: Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38 R v Oinonen [1999] NSWCCA 310 R v Thompson (2000) 49 NSWLR 383 Category: Sentence Parties: Meshack Nindagiye (the offender) Director of Public Prosecutions Representation: Solicitors: Mr P Townsend, Solicitor Advocate, Legal Aid NSW (for the offender) Ms J Dawson, Director of Public Prosecutions File Number(s): 2017/00295053

sentence – ex tempore revised 1. Meshack Nindagiye was born in 1997. He came to Australia from Tanzania in 2017, as a refugee. He came with his large family after they had suffered cultural violence and threats in their home country. While his background in Tanzania was one of relative poverty he had support from a loving family who did all they could to provide for him. 2. Nindagiye enjoyed his time in Australia. He did well at school and was able to enrol at the University of Wollongong. As is not uncommon he took time off from University to try and get some funds to help support himself before continuing with his degree. 3. He has been in two major relationships, both of which were highlighted in the facts of this case. He and Ms Kouros, the complainant in this matter, commenced a relationship in April 2017. They had separate homes but saw each other regularly. 4. In 2017 Nindagiye was living in Koonawarra with some friends. Nindagiye and Ms Kouros were communicating and, in the context of their relationship, sometimes not communicating, with each other on the night of 28 September 2017. Ms Kouros formed the view, it appears accurately, that the offender was seeing his ex-girlfriend, or communicating with her. 5. Ms Kouros arrived at the offender's house at 11.45 pm on the evening of 28th September. She telephoned the offender and said that she was out the front. He told her he would come out and see her but could not talk long. He came outside carrying a golf club. This can be explained because at the time Nindagiye was, with some justification, suffering from anxiety, depression and a degree of paranoia; he having recently been the victim of a very serious assault that occurred during a home invasion. 6. Ms Kouros and the offender went inside to his room. There they argued about their relationship. He eventually admitted to seeing his ex-girlfriend. Ms Kouros on hearing this said, "Well, I'm going to leave then. There's nothing else for us to talk about". The offender then put the victim down on the bed and said, "You're not fucking going anywhere, we're going to sort this out and talk things through". As she got up to leave she was again pushed back onto the bed. 7. If that was all that had occurred criminal courts would not have been involved. But what occurred thereafter was a very serious crime; a very serious crime which carries with it a potential maximum penalty of 20 years' imprisonment. 8. The offender grabbed a machete, a photograph of which is exhibit D, which was hanging on a nail near the door. He waved it around. Ms Kouros was fearful; she pulled out her phone and began to video record what was occurring. At one stage Nindagiye said, "Keep fucking us up all right. You never give a fuck about me all right". He then pushed Ms Kouros onto the bed, straddled her chest and pinned her arms down. He touched the machete to her throat and told her he was not afraid of going back to gaol. The victim was, understandably, fearful of what he was going to do next. 9. A housemate heard the commotion and called out from another room before opening the door and looking into the bedroom. The offender told him, "Don't worry, we're just sorting things out." The housemate left the room. 10. Still armed with the machete Nindagiye got off Ms Kouros and shut the door. He picked up a metal dog lead with a leather strap. He walked to the bed and slapped the victim across the face. He pinned her down again and slapped her several more times. He was saying, "Say it again" and "say it." Ms Kouros said, "I'm not going to say anything." 11. Nindagiye responded, "I'm either going to choke you to death or stab you. Which one, knife or this?" He put the machete on the bed and picked up the chain again. He used the chain to push down against her throat, telling her he would choke her. By this time she was struggling to breathe and felt dizzy. She estimates that the chain was held against her neck for a minute. 12. Nindagiye removed the chain and Ms Kouros said to him she did not want him and that she wanted to go home. The offender then said they could try and work things out. She replied, "No, let me go, I want to go home". Again he refused to let her go. He was still pinning her down and refusing to get off her or allow her to leave, she was asking him to stop and "Let me go." 13. At this stage a housemate opened the door saying, "What the hell is going on?" Nindagiye told him it was none of his business and to leave them alone. His housemate said, "Bro, let her go. Honestly what is this?" The offender picked up a golf club and snapped it in half. He hit Ms Kouros on the leg, above the knee, saying, "Ya bitch, take it". The housemate again told the offender to let go and warned him he would call the police. Nindagiye picked up a knife, pushed Ms Kouros against the wall and held it to her stomach. He said, "I'm going to kill you". As she tried to push him away again her right hand was cut. 14. Another housemate came into the room and intervened. Ms Kouros was able to run out of the house. She ran screaming into the night and phoned her sister to come and get her. She was in the house for more than an hour. 15. She was collected by her sister and taken to the police station. There, her injuries were photographed: They are exhibited before me. They indicate that she had; bloodshot eyes, scratches and bruises to the left side of her face, tenderness to her cheeks and throat, a cut to her right thumb, scratches to the right side of her stomach and bruising and a welt on her right arm. 16. Police attended the premises. During a search of the offender's bedroom they found the machete, dog chain, broken golf club and a kitchen knife. Nindagiye was arrested and has been in custody since his arrest on 29 September 2017. 17. A plea of guilty to this matter was entered only recently, on the trial date, 22 May 2019. Information now before the Court shows that an offer to plead to the present charge - aggravated detain without consent with the intention of committing a serious indictable offence of intimidation with a circumstance of aggravation, being the infliction of actual bodily harm, was made soon after the matter was committed to this Court: s 86(2)(b) Crimes Act 1900. The Crown elected, at that stage, to proceed with both this matter and other counts which were on the original indictment. The offer to plead was conditional upon the Crown not proceeding with the other matters. Ultimately, the Crown accepted that they would not proceed with those other matters. Nindagiye was then arraigned on count 1 and pleaded guilty. 18. Timing of a plea is important. It is one of the principal matters taken into account in the Court of Criminal Appeal's guideline judgment of R v Thompson (2000) 49 NSWLR 383. Other matters raised by the Chief Justice in para 3 went to the advantages of accepting and rewarding early pleas as they mean victims do not have to go through the ordeal of giving evidence. 19. Because of the plea, even at such a late stage, we were able to cover the gap in the list by listing other matters which would have otherwise been delayed. In all the circumstances I am prepared to allow a benefit to the offender for that plea of 20%: see R v Oinonen (1999) NSWCCA. 31, 20. The maximum penalty is 20 years' imprisonment. It is one guide to the seriousness of the matter. 21. An objective assessment of what occurred starts with a man who was, ostensibly, in a loving relationship with Ms Kouros treated her with contempt. He held her for about an hour. She suffered the physical injuries that I have noted. Although there is no Victim Impact Statement before me the absence of it does not mitigate the offence. I can readily understand that Ms Kouros, having been subjected to these events, would have suffered psychologically. Whether or not there is lasting harm, certainly the events would have had a continuing impact on her. Her rights as a human being were denied her for the period that she was held. Weapons were used against her: one was a large bladed weapon. There were threats to kill. She suffered actual bodily harms, which while each individually were relatively minor, were to multiple parts of her body. A threat was made, and partially carried out, to choke her. It would have been a terrifying experience. 22. The offender was not put off by the concerns of his housemates. He exposed the complainant, particularly by the use of the machete, to an objectively high risk of serious injury. He exercised a degree of unwanted, unnecessary and dangerous power and control over his victim. He abused the power and control he had over the complainant once she was alone and vulnerable in his room. He abused their prior relationship of trust. 23. It is accepted that victims of such offences suffer. Ms Kouros was personally targeted; as a consequence victims often never feel truly safe again. It needs to be stated and restated, although it should be obvious to all, that violence of such nature, violence in all its forms, is unacceptable. Proper recognition must be given to the real harm such crimes do to their victims and to the community in general. There is a need when imposing sentences in such cases for both general and personal deterrence and denunciation. 24. The offender has criminal antecedents. He has a domestic violence matter on his record from April 2016. He is not entitled to leniency often shown first offenders. Further, he was, at the time, in breach of bail conditions for assault matters, for which he was convicted in his absence. 25. He has been in custody since his arrest on 29 September 2017. He received a Local Court sentence for the assault for which he had failed to appear. There must be some independent punishment for that matter, it being separate and independent, but I do not believe it is necessary for this sentence to be made totally cumulative on it; giving proper effect to the principles of totality. There must also be recognition of the fact that credit for 19 days of custody was missed when the matter was before the magistrate. 26. Nindagiye's gaol record is before me. There is nothing in his gaol record to indicate he has been other than a model prisoner. 27. I am indebted to Ms Jelen for her report which sets out his background: exhibit 1. He has a strong prosocial family. All are, understandably, shocked by his offending. They remain supportive. They believe he should return to them as soon as possible so that he can engage with his church and take up again the Christian principles that have guided his life and failed to guide him on this occasion. His father is a pastor. His parents worked hard so he could be schooled. They worked hard in Tanzania and they overcame many hardships of life there to do so. They overcame many hardships when they first arrived in Australia. They gave him support and many benefits that many in the community did not and do not receive. 28. I can understand that relationships give rise to anger and, occasionally. Courts accept that there might be some minor loss of control. But nothing, nothing, even what occurred to him a month before, could excuse Nindagiye's behaviour in any way. He accepts now that his behaviour was unsupportable and wrong. He says that he is remorseful but I suspect it is more regretful for him, him having broken his family values. There is nothing to indicate that he fully understands the extent of his behaviour so far as the harm that may have been inflicted on Ms Kouros is concerned. 29. Ms Jelen indicates that he would benefit from support and, in the community, the very useful programs run by Community Corrections for domestic violence for men. 30. An important consideration in this matter was the fact that on 18 September 2017, that is only days before this matter, Nindagiye was in a home subject to a violent home invasion. On 12 December 2018, I sentenced one of the offenders to a lengthy term of imprisonment for his role in the crime that led to Mr Nindagiye being struck with a tomahawk. The exhibits in that matter indicated that he suffered two wounds to his face, including a full thickness laceration to the left zygomatic region. 31. The offender did not, by the time of this offence and his going into custody, have any opportunity to get any counselling for the obvious trauma that would have resulted. It is accepted that it provides some explanation as to why he left the house with a golf club and kept the machete behind his door. One would readily accept that trauma and paranoia would have resulted; matters which are referred to in Ms Jelen's report. 32. A submission was made that the sentence be reduced and s 23 of the Crimes (Sentencing Procedure) Act 1999 taken into account. There have been some efforts recently to expand how s 23 applies but I do not apply that section here. That said, sentences involve a synthesis of all relevant factors and I have, so far as I am able, taken into account that Nindagiye was, shortly before the commission of this offence, the subject of a very violent crime and suffered himself the consequences that one would expect from such a violent crime. As is obvious from the conviction of that other offender, he did what he could to assist, as any witness and victim of crime should, in the further prosecution of that matter. 33. I am indebted to Mr Townsend, for the offender, for his submissions, and Ms Dawson, for the Director of Public Prosecutions, who have fairly put all relevant matters which I hope I have addressed. 34. Mitigating factors must be given all due weight, but ultimately a court has to go back to what was done and the objective seriousness of what was done. Here the various purposes of sentencing point in two directions. One is to punish the offender, to exact retribution and to seek by the harshness of the punishment to deter others from doing as he did. I have no doubt that his time in custody has personally deterred him. The other involves recognition that Nindagiye has solid prospects for rehabilitation. Although he has a criminal record, with help, he should be able to restore himself to the community and live a worthwhile life. There is a need, because of his demonstrated rehabilitation and his prospects for further rehabilitation, for a significant finding of special circumstances. This recognises the fairly extraordinary situation that occurred before his offending and the many prosocial supports he is receiving, which should assist him in not reoffending. 35. It has been recognised that harsh sentences are likely to be of little utility in reducing the incidence of violent crimes, particularly where passion is involved: Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38. But the High Court there then made the important point that the proper role of the criminal law is not simply limited to the utilitarian value of general deterrence. Courts have an obligation to vindicate the dignity of each victim of violence, particularly violence in this context and of this type. It would be wrong for any court to accept that a victim of violence is someone less in need or deserving of protection and vindication as the criminal law provides because offences occur in a domestic context. 36. Courts must express the community's disapproval of offending of this type and by imposing appropriate punishment afford the community some protection against repetition of the violence. I note here that supervision on parole can provide protection against reoffending, if opportunities offered are taken.