IN THE SUPREME COURT OF VICTORIA	Not Restricted	
AT MELBOURNE
Criminal Division
S ECR 2023 0049

DIRECTOR OF PUBLIC PROSECUTIONS	Crown	
		
v 		
		
DANIEL SISAL	Accused	

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JUDGE:	Beale J	
WHERE HELD:	Melbourne	
DATE OF HEARING:	20 September 2024	
DATE OF JUDGMENT:	20 September 2024	
CASE MAY BE CITED AS:	DPP v Sisal	
MEDIUM NEUTRAL CITATION:	[2024] VSC 589	

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SENTENCE — Manslaughter — Youthful offender (19 at time of offence, 22 at time of sentence) — Youthful victim (24) fatally shot in home invasion by several masked intruders — Purpose of home invasion was to steal drugs and/or money — Intruders armed with loaded gun, machete and a taser — Offender aware prior to home invasion that co‑offender’s gun was loaded — Offender entered the house but whether he was armed unable to be determined — Only a few months after manslaughter, the offender plotted another home invasion with a loaded firearm — Mostly Children’s Court priors but priors for offences involving violence — Plea of guilty post contested committal — Not satisfied of genuine remorse — Despite youth, prospects of rehabilitation guarded — Time on remand harsher than normal because of Covid 19 measures in prisons and placement in management units — Delay of almost 3 years between arrest and sentence — Murder charge hanging over offenders head for approximately 2 years whilst on remand — Azzopardi v R (2011) 35 VR 43 — Filippou v R (2015) 256 CLR 47 — R v Kilik (2016) 259 CLR 256 — R v Mohamed [2024] VSC 318 — Yat v R [2024] VSCA 93.
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APPEARANCES:
	Counsel	Solicitors	
For the Crown	Mr R Gibson KC	Office of Public Prosecutions	
			
For the Accused	Mr C Terry
Ms T Skvortsova 	Chester Metcalfe & Co	

HIS HONOUR:
CIRCUMSTANCES OF OFFENCE
1	Daniel Sisal, you pleaded guilty to manslaughter, the maximum penalty for which is 25 years’ imprisonment.  
2	On 24 August 2021, you were party to a joint criminal enterprise with at least three others (including Mohamed Mohamed, whom I have already sentenced) to burgle the home of one Christopher Habiyakare and steal drugs and/or money. Mohamed drove you and your co‑offenders to the scene of the crime in his mother’s Astra. Three of your party were armed, one with a loaded gun, the other with a machete and the third with a live taser. Mr Habiyakare and five of his friends or associates were watching TV just before the home invasion. There was knocking at the front door which Mr Habiyakare answered, at which point several intruders, all wearing face masks, burst into the house, smashing a front door glass panel in the process. The intruders brandished their weapons and yelled at Mr Habiyakare. Some of his friends escaped through the loungeroom window, hurting themselves in the process. One of the intruders went up to Mr Habiyakare who said words like “Woah woah, you’re going to shoot me?”. The gun discharged, striking Mr Habiyakare in the chest, fatally. Your group decamped soon after the shooting, returning to the Astra and driving away.  
Agreed Facts
3	There were both agreed facts and disputed facts at your plea hearing.  
4	The agreed facts were set out in the prosecution opening as follows: 
[6] 	[B]oth Mohamed and Sisal acknowledge that:
a. 	They entered into an agreement or a plan to commit a home invasion at Habiyakare’s home with their co‑offender Mustafa Alhassan;
b. 	The purpose of the home invasion was to steal drugs and/or monies that they believed would be present in Habiyakare’s home;
c. 	Mohamed drove people to, and from, an area near Habiyakare’s home for the purpose of the home invasion being carried out;
d. 	Sisal was one of the intruders who entered Habiyakare’s home;
e. 	Another intruder, Alhassan, possessed a firearm;
f. 	Both Mohamed and Sisal were aware that Alhassan was armed with a firearm at the time the home invasion took place;
g. 	It was intended, and both Mohamed and Sisal knew, that Alhassan’s firearm would be employed to threaten Habiyakare;
h. 	Some of the intruders were armed with a taser and a machete, but the prosecution cannot say which intruders were armed with these weapons;
i. 	In the course of the incident, Habiyakare was shot by Alhassan;
j. 	The threatening of Habiyakare with a firearm in the course of a home invasion was an unlawful and dangerous act and was consistent with the elements of the offence of manslaughter; and
k. 	The fact that the killing took place in Habiyakare’s home, during the course of a planned home invasion, amounts to an aggravating feature of the offence of manslaughter.  
Disputed Facts
5	The disputed facts were whether you knew the gun was loaded and whether you were armed.  
Whether DS knew gun was loaded 
6	Whilst I accept that your plea of guilty does not implicitly mean that you knew the gun was loaded, I infer beyond reasonable doubt that you had that knowledge. The circumstances that support that inference are these: you were planning to steal drugs and/or money from someone whom you believed to be a significant drug dealer, not a little old lady. The offence was to be carried out at his home. It is not uncommon for significant drug dealers to have weapons for their protection, including firearms, especially at their home. You also knew that there had been an altercation at his home a couple of days before, which increased the probability of him being armed in case there were reprisals. Your offence was premeditated. You and your co‑offenders met up beforehand and travelled together to the victims home. It seems to me that, in those circumstances, it is only a remote possibility that you were not aware that the gun was loaded.  
Whether DS was armed
7	It was not alleged by the prosecution you were armed. But neither did the prosecution concede that you were unarmed. The fact that Mr Habiyakare’s friends told police there were at least four intruders and only three were armed is insufficient to establish, even on the balance of probabilities, that you were unarmed. As the High Court made clear in Filippou v R, I am not obliged to sentence you on a view of the facts most favourable to you. I proceed on the basis that I am unable to determine whether or not you were unarmed.  
Victim Impact
8	Chris Habiyakare was the principal but not the only victim of your offending. Victim impact statements have been tendered by his father as well as his friends and associates who were present at his home at the time of the home invasion.  
9	His father Belthrand Habiyakare is devastated by the loss of his son. He writes that it has profoundly affected his mental health. He has difficulty concentrating, he suffers panic attacks, he feels he failed to protect his son and he is fearful for his other children. He now struggles in his leadership role in the Burundian community and withdrew from his Masters at Melbourne University.  
10	The victim statements of Aasha Beasley, August Niranyibagira, Maya Wolkoski and Tiggy Atakelt, friends of the deceased who were present at the home invasion, powerfully portray the terror of their ordeal, and the enduring impact it has had on each of them. One theme is their loss of a sense of safety, even at home. August Niranyibagira, a close friend of the deceased, writes, referring to you and your co‑offenders: “[h]ow do they live with themselves knowing that my life and all the others will never be the same, the hurt and trauma lingering on?”.  
Objective seriousness of offending 
11	I am obliged by the High Court to assess the objective seriousness of your offending. You were party to a carefully planned joint criminal enterprise which involved the invasion of someone’s home at night by multiple offenders with multiple weapons. I am satisfied that you were aware that the weapons were a loaded firearm, a machete and a live taser. You entered the house, wearing a mask, like the other intruders. In the course of that invasion, Mr Habiyakare, a young man of 24 was shot and killed and the other young people present were terrified, some injuring themselves in their efforts to escape. Although you did not discharge the gun, you knew it was loaded and you knew your co‑offender would threaten Mr Habiyakare with it. I consider that your manslaughter falls at the upper end of the mid‑range of manslaughters.  
CIRCUMSTANCES OF OFFENDER 
12	I turn now to your personal history and circumstances.
13	On 11 December 2001, you were born in Sudan but my understanding is that you are Ethiopian. You are an only child. Your mother and father separated soon after your birth. According to your mother, your father was abusive. You have had hardly any contact with your father since your parents’ separation.
14	In 2004 or 2005, when you were aged 3, you came to Australia with your mother, maternal grandmother and maternal aunts. You had previously been in a refugee camp in Sudan. Your family settled in the inner west of Melbourne, living in housing commission properties in Flemington and Ascot Vale. Your mother worked as a cleaner. You were living in Ascot Vale at the time of your offence.  
15	In 2009, at your request, your mother took you to Ethiopia to meet your biological father. According to your mother, the meeting did not go well. No meaningful relationship developed between you and your father, who remained in Ethiopia. Not surprisingly, you have been pained by the absence of your father in your life.  
16	Around 2012, when you were about 11, your mother was hospitalised in Parkville for about a month in relation to mental health issues. Your grandmother was your primary carer whilst your mother was in hospital. 
17	Your main interest and delight as a child was soccer. You were a gifted junior soccer player and played with the Melbourne Knights. You dreamed of becoming a professional soccer player. Around 2014, when you were about 13, you were offered a scholarship to play soccer in the UK. Your mother, understandably, thought you were too young to leave her care and supervision. You seemed to lose your way after this disappointment. Eventually, you quit soccer. You began truanting from school. You fell in with a peer group who were using and selling drugs.  
18	Around Year 8, you started using drugs.  
19	In Year 9, you were expelled from high school.  
20	On 6 June 2017, when you were 15, you received your first Children’s Court sentence — a Youth Supervision Order (without conviction) for two armed robberies, robbery, attempted robbery, aggravated burglary, affray, recklessly causing injury, assault, theft, committing an indictable offence whilst on bail and possession of a drug of dependence. It was, one might say, a flying start to your criminal record.  
21	On 12 June 2007, you became an Australian citizen.  
22	On 3 November 2017, just a few months after the imposition of your first Children’s Court sentence, you received your second Children’s Court sentence — another YSO (but with conviction) — for another affray, four counts of possession of drugs (including heroin and methylamphetamine) and committing an indictable offence on bail. It seems likely from the recording of a conviction that the offending occurred whilst you were on your first YSO.  
23	On 13 April 2018, when you were 16 you received your final Children’s Court sentence — a Youth Attendance Order with conviction for robbery and possessing cannabis.  
24	On 11 May 2020, when you were 18, you received your first adult sentence at Melbourne Magistrates’ Court — a combined sentence of 149 days’ imprisonment (ie, time served on remand) and a 12 month Community Corrections Order (CCO) for robbery, unlawful assault and commit an indictable offence on bail.  
25	On 24 August 2021, only about 3 months after completing your CCO, you committed the offence for which I must sentence you today.  
26	Between 17 and 28 November 2021, less than 3 months after the manslaughter of Christopher Habiyakare, police listening devices detected that you were plotting to carry out another home invasion and were seeking to obtain a loaded firearm for that purpose.  
27	On 30 November 2021, you were arrested and charged with the murder of Christopher Habiyakare. You told a great many lies in your recorded police interview that day, denying any involvement in the offending.  
28	Since your arrest, you have been in custody, first at Port Philip Prison (PPP) and, since late 2023, at the Melbourne Remand Centre (MRC).  
29	In March 2023, you ran a contested committal on the basis that you were not one of the offenders. You were committed to stand trial on the offence of murder and pleaded not guilty.  
30	On 24 November 2023, you and Mohamed pleaded guilty to manslaughter.  
31	Whilst in custody you have undertaken several courses for which certificates were provided. I was told by your counsel that you have undertaken a drug and alcohol rehabilitation course in custody but no certificate verifying your participation in such a course was provided. I was also told that you have abstained from illicit drugs in custody but no urine screen results were provided.  
Conditions on Remand 
32	You were arrested on 30 November 2021 and received at MRC on 2 December 2021.  
33	You spent the first two weeks of your incarceration at MRC in Covid 19 quarantine. You later spent another 2 weeks in Covid 19 quarantine, having caught Covid yourself. During quarantine, you were confined to your cell for 22‑23 hours per day and unable to participate in employment or education programs. 
34	You were at PPP for almost two years before being moved to MRC, where you currently remain.  
Periods of separation from mainstream prisoners
35	Whilst at PPP you were separated from mainstream prisoners from time to time for non‑Covid 19 related issues. It is an agreed fact that you spent a total of 386 days in non‑Covid separation during your time at PPP, that is, approximately 13 months, during which time you were confined to your cell for 22 to 23 hours per day and unable to participate in employment or educational programs.  
36	Unlike the plea materials provided in respect of Mohamed, who spent approximately 10 months in solitary confinement and whose mental health deteriorated significantly during that period, I do not have the benefit of any psychiatric or psychological report as to the effect of this separation from the mainstream prison population on your mental health but I am willing to accept that your conditions of incarceration during that period were significantly harder than for a mainstream prisoner. Consistent with the Court of Appeal’s decision in Yat v R, I take that into account as a mitigating circumstance, even though it appears that your own misconduct in PPP may have contributed to your solitary confinement.  
References 
37	References were provided by your mother Atala Taya, your 18 year old cousin Yosief Kassa, and also from an organisation called Africause.  
38	Your mother writes: 
“Daniel wanted to go overseas to play soccer. I said no, you’re too young to be away from me.  My big attention was on his studies…then around 14 he started saying he didn’t want to go to school anymore.  He changed. I found he wasn’t going to school.  He had new friends.  I stopped paying for his soccer as a punishment.  I thought that would get him to go to school, but it didn’t. He then just stopped soccer all together…when Daniel stopped playing soccer and going to school, he got caught up with the wrong people. He would stay out late. I wouldn’t be able to get on to him, he would come home at all hours. ..I’ve been speaking to Daniel since he has been in prison. He told me “Mum I’m so sorry for everything, for everything I’ve put you though.”  
39	Your mother also confirms that when you get out of prison, you want to move away from the Ascot Vale area, get a job and save up to buy a house for you and your mother to live in.  
40	Your cousin also referred in his reference to your disappointment at not being able to go overseas and play soccer:
He was just angry and mad, and started lashing out. He wouldn’t listen to anyone and he wouldn’t listen to his Mum.  
41	Your cousin talks about losing contact with you when you got caught up in the juvenile justice system. But he has spoken to you on the phone since you have been in prison and keeps in contact that way.  
42	The letter from Africause says they have accepted a referral in relation to you and will help you transition back into the community when that time comes.  
Whether remorseful 
43	It was submitted that you are remorseful.  
44	Whilst your mother speaks of you being sorry for everything, it seems to be remorse for what you have put your mother through, not remorse in respect of the victim and his family. There is no mention of your remorse in your cousin’s letter.  
45	You wrote a letter of apology addressed to your victim’s father shortly before your plea hearing, and it was tendered at the plea hearing. The lateness of this apology, and the circumstances in which it was produced, make me sceptical about its sincerity.  
46	To say the least, genuine remorse over Mr Habiyakare’s death in August 2021 was not apparent when you plotted another armed home invasion with a loaded gun in late November 2021.  
47	In all the circumstances, I am not satisfied on the balance of probabilities that you are genuinely remorseful, notwithstanding your eventual plea of guilty.  
48	I hope I am wrong about that. I hope that you are deeply sorry for your part in Christopher Habiyakare’s killing and the enduring trauma you have visited upon his loved ones.  
Prospects of Rehabilitation 
49	Notwithstanding your youth, I am also guarded about your prospects of rehabilitation because of your criminal antecedents and your readiness to take part in another home invasion so soon after the current offence.  
Summary of Mitigating Circumstances
50	Let me now summarise what I consider are the circumstances which should mitigate your sentence: 
•	first, your plea of guilty, which has significant utilitarian value. It was not a plea of guilty at the first reasonable opportunity but neither was it a late plea; 
•	next, the fact that you had a murder charge hanging over your head for approximately 2 years (from 30 November 2021 to 24 November 2023); 
•	next, the delay between charge and sentence of almost 3 years; 
•	next, your youth — you were only 19 at the time of the offence and are only 22 now. But the seriousness of your offence means that youth is less of a mitigating circumstance than it would otherwise be; 
•	next, some of the time you spent in custody on remand was harsher than normal because it coincided with Covid 19 restrictions in the prisons and you spent approximately a month in Covid 19 quarantine; 
•	finally, you spent approximately 13 months at PPP separated from mainstream prisoners for non‑Covid reasons. Again, during that time you were in solitary confinement in your cell for 22 or 23 hours per day, and unable to participate in employment and rehabilitative programs, making your experience of incarceration more burdensome.  
51	I note that your counsel submitted that you should receive a discount for having entered a plea of guilty at a time of Covid 19 trial backlogs but I am not satisfied that, as at 30 November 2023, there were such backlogs in the Supreme Court.  
CURRENT SENTENCING PRACTICES
52	With regard to current sentencing practices for manslaughter by an unlawful and dangerous act, I was referred by the prosecution and your counsel to several other sentencing cases. They were manslaughter cases where a firearm was involved. R v Belmore and R v Latuhoi postdated the increase in the maximum penalty for manslaughter from 20 years’ imprisonment to 25 years’ imprisonment. The rest of the cases preceded that change. The head sentences for manslaughter ranged from 9 to 12 years and the minimum terms ranged from 5 years 6 months to 9 years.  
53	I derived some assistance from these sentencing cases but each case turns on its own unique facts.  
DISPARITY OF SENTENCES
54	I sentenced Mohamed to 4 years’ detention in a Youth Justice Centre (YJC) but, effectively, I gave him a head sentence of 6 years and 6 months because I did not give him any credit for the two and a half years he spent on remand in an adult prison. Unlike Mohamed, I will not be sentencing you to detention in a YJC. Once you turned 21 on 11 December 2022, that option was no longer available but, even if it had been, your criminal antecedents would have made such a sentence inappropriate. For several reasons, not only because of your antecedents, I will be giving you a longer head sentence than I gave Mohamed. Let me explain the reasons for the disparity.  
55	First, I sentenced Mohamed on the basis that he did not enter the house whereas you did enter the house.  
56	Next, there was unchallenged evidence that Mohamed spent approximately 10 months of his two and a half years on remand in solitary confinement which, according to two psychiatrists, had a significantly adverse effect on his mental health, including experiencing auditory hallucinations. This justified a significant discount on his sentence, consistent with what the Court of Appeal said recently in Yat v R. In your case, whilst you will receive a discount in respect of the time you spent in separation for non‑covid reasons, there is no expert evidence indicating that your mental health was significantly affected by the time that you spent in solitary confinement.  
57	Next, Mohamed did not have any prior convictions. You have several priors for offences involving violence, even if the majority were dealt with in the Children’s Court.  
58	Next, I found Mohamed’s prospects of rehabilitation to be reasonable. I am guarded about your prospects, which elevates the weight to be given to specific deterrence in your case.  
59	Certainly, there were similarities between you and Mohamed, but there were also significant dissimilarities which in my view justify significantly disparate sentences.  
SENTENCE 
60	Please stand.  
61	For the offence of manslaughter, I sentence you to 9 years’ imprisonment.  
62	I order that you must serve 6 years’ imprisonment before being eligible for parole.  
63	I declare that but for your plea of guilty I would have sentenced you to 11 years’ imprisonment with a minimum term of 8 years.  
64	I declare that you have served 1,025 days by way of presentence detention.