R v Abdallah

R v Abdallah - [2015] NSWSC 531 - NSWSC 2015 case summary — Zoe

The facts

As sentencing judge, I may not take facts into account in a way that is adverse to the interests of the offender unless the facts have been established beyond reasonable doubt. However, if there are circumstances which I propose to take into account in favour of the offender, it is sufficient that they be proved on the balance of probabilities: The Queen v Olbrich [1999] HCA 54; 199 CLR 270 at [27], per Gleeson CJ, Gaudron, Hayne and Callinan JJ.
In September 2011 Ms Abdallah obtained employment as a senior project manager at Fujitsu. At that time she was living with her parents. In about July 2012 Ms Abdallah rented a townhouse on Moate Avenue, Brighton-Le-Sands, which she later contracted to purchase. From July 2012, when she moved into the townhouse, she started using cocaine daily at a weekly cost of about $1,500.
In about October 2012, Ms Sarkis began to stay overnight at the townhouse from time to time. Ms Sarkis, at 21, was ten years younger than Ms Abdallah. They were distantly related: Ms Sarkis was the daughter of a cousin of the offender's father. Ms Abdallah's maternal aunt was married to Ms Sarkis' paternal uncle. The offender's and victim's respective families had migrated to Australia from the same village in Lebanon. Ms Sarkis' family was not happy about her living with Ms Abdallah, whom they regarded as a bad influence. Towards the end of 2012, Ms Sarkis moved out of her parents' house to live permanently with Ms Abdallah.
On 29 January 2013, Ms Abdallah arranged for CCTV cameras to be installed on the ground and first floors of her townhouse, as well as in the garage on the lower ground floor. The cameras were capable of continuous recording. The footage, which did not include sound recording, provided the principal basis for the findings of fact set out below that relate to events either inside the townhouse or the garage. It was an agreed fact that video footage recorded by these cameras showed that at times Ms Abdallah and Ms Sarkis would ingest cocaine together.
In January 2013 Ms Abdallah exchanged her SLK Mercedes motor vehicle for a newer model, an AMG, which she also leased. On Friday 8 February 2013 she completed the purchase of her townhouse. On the same day she exchanged contracts for the purchase of another townhouse, in Griffith Street, Sans Souci. She asked the agent, Mr Oksuz, to inquire of the owners whether early access to the property before completion could be arranged.
On Friday 8 February 2013, in the evening, Ms Sarkis drove Ms Abdallah's Mercedes out of the garage. Before she left, she mislaid her mobile phone; it was subsequently located in the garage after her death. At about 10.30pm that evening, police highway patrol clocked the vehicle at a speed of about 112kms/hour in a 60kms/hour zone. Police ultimately stopped the Mercedes but, while they were obtaining Ms Sarkis' details, she returned to the car and drove away. Police contacted Ms Abdallah, as the registered owner of the car, informed her about the speeding and told her that there was some damage to the tyre rims. One officer remembered Ms Abdallah saying: "If you guys get a call to come here, don't bother to come back." Another officer recalled that she said: "She's going to be in serious trouble when I get her. You guys'll probably get called back."
Shortly after midnight on Friday night Ms Sarkis drove the Mercedes to the garage under the townhouse. Although she was unlicensed, she manoeuvred it without any apparent difficulty. She had also driven the SLK, Ms Abdallah's previous car. When Ms Sarkis came up the stairs from the garage Ms Abdallah spoke with her briefly before Ms Sarkis settled on a couch in the sitting room under a blanket and went to sleep.
Ms Sarkis woke at about 8.20am the next morning, Saturday 9 February 2013. At about 9.50am Ms Abdallah approached Ms Sarkis, who was on the couch, and slapped her across the face. The two women spent some hours together in the townhouse during the morning. Although at times there appeared to be some friction, at other times they appeared to be amicable.
At about 1.13pm Ms Sarkis wrote a note to Ms Abdallah in a blank book which she took upstairs to Ms Abdallah's bedroom. The note read: "I took car to get doc certificate and hit up Amy (prostitute) Took ur phone Call me from Home number I'm so sorry Don't sit and justify [unclear] I'm not like the rest I love you unconditionally I respect you Katherine I really adore you With my whole heart Love Suzie"
At about 1.32pm Ms Sarkis took Ms Abdallah's mobile phone (her own was still misplaced in the garage) and drove the Mercedes out of the garage without her permission.
At 2.30pm Ms Sarkis visited a solarium on the Princes Highway at Rockdale. When Ms Abdallah read Ms Sarkis' note, she became angry. George and Jack Ayash, who were brothers, were also at the townhouse. Jack, who wanted to drive the Mercedes to a wedding that afternoon, sent a text to Ms Abdallah's mobile phone, which Ms Sarkis had taken with her, which said: "Its jack I need the car I got a wedding suzi I'm in brighton kats losing it"
Ms Sarkis did not answer any of the calls or texts. At 3.17pm the Ayash brothers found her at the solarium. They took the Mercedes and left her to find her own way.
Not long afterwards, Ms Sarkis was walking along Crawford Road, a suburban street near Moate Avenue, when Ms Abdallah and the Ayash brothers caught up with her. They stopped the car on the corner of Kurnell Street and got out. Ms Abdallah rebuked Ms Sarkis for borrowing the car without permission and made her repeat several times, "It's not my car." The volume of their exchange attracted the attention of neighbours and passers-by. At one point one or both of the Ayash brothers physically restrained Ms Sarkis while Ms Abdallah struck her several times. At another point, the two women were on the ground, wrestling. Ms Abdallah restrained Ms Sarkis in a head lock and screamed, "Is this how you want it to be?" One of the men said to Ms Sarkis, "If you come around to her place, you will have to deal with me."
After the altercation, the offender and the Ayash brothers drove back to the townhouse. Although Ms Sarkis was injured in the attack, she was able to walk away from the scene without assistance. None of the many bystanders who observed the conflict from their various vantage points in their homes or on the footpath called either the police or an ambulance.
Ms Abdallah and the Ayash brothers returned to the townhouse at about 3.50pm in the Mercedes. Ms Sarkis arrived not long afterwards on foot, holding a bag of ice against her forehead. Despite the recent conflict, there were no further flare-ups while the men were there. Indeed, one of the Ayash brothers replenished the ice in a bag for Ms Sarkis to apply to injuries to her forehead which she had sustained during the attack on her in Crawford Road.
At about 4.40pm, Ms Abdallah rang Mr Oksuz, the real estate agent for the Sans Souci property, and renewed her request for early access to the property. He told her that it was unlikely that it could be arranged before Monday.
At about 5pm the Ayash brothers left Moate Avenue in the Mercedes. Ms Sarkis used the landline to call the Leichhardt Aquatic Centre to get a contact number for her friend, Mary Massih, which she wrote on her hand. Ms Sarkis, who was upset at the time, told Ms Massih that she was getting bashed by Ms Abdallah and Jack Ayash and that she wanted to be picked up. Ms Sarkis explained to Ms Massih that she would call her back in about an hour because she did not have a phone. Ms Abdallah heard Ms Sarkis making the arrangement with Ms Massih and knew that she intended to leave the townhouse.
At about 5.30pm Ms Abdallah spoke to her aunt, Jeanne Sarkis (who was also Ms Sarkis' aunt), for about a quarter of an hour. Ms Abdallah's tone was calm. She did not disclose that Suzie was with her.
At about 5.50pm, there was a verbal exchange between the two in the course of which Ms Abdullah rebuked Ms Sarkis, following which Ms Abdallah settled on the couch under a blanket and Ms Sarkis used the landline to call Ms Massih again. While Ms Sarkis was trying Ms Massih's number, she walked with the handset towards the front door of the townhouse, and reached for something on the couch which may have been Ms Abdallah's mobile phone. Ms Abdallah leapt up from her position on the couch to prevent her from getting access to the item. She chastised Ms Sarkis. Ms Sarkis kept trying to contact Ms Massih, who in the meantime had fallen asleep (as a result of a medical condition) and did not hear her phone ring. After the fourth attempt, Ms Sarkis got up, put down the handset and deliberately upset a glass vase that was on the table. It shattered when it hit the floor. Ms Sarkis then picked up her belongings, swept papers from the table onto the floor, and headed for the front door, intending to leave the townhouse.
Ms Abdallah, who was lying on the couch, got up, obstructed Ms Sarkis' path to the door and struck and kicked her. I do not accept Ms Abdallah's evidence that these blows and kicks were just "air swings". Ms Sarkis then put down her belongings on the stair case that led to the first floor and started to punch Ms Abdallah. Shortly afterwards, Ms Abdallah was lying face down on the couch and Ms Sarkis struck her repeatedly. Ms Abdallah ended up on the floor, with her hands crossed over her face to protect her head while Ms Sarkis continued to punch and slap her. At one point Ms Sarkis kicked Ms Abdallah who was on the floor. Both women were screaming at each other so loudly that they could be heard by neighbours in the townhouse complex. The neighbours had heard such arguments before from Ms Abdallah's townhouse in the period since she had moved there.
Ms Sarkis then threw Ms Abdallah's mobile phone onto the floor and picked it up and threw it down again. Ms Abdallah got up and began to attack her. They struggled around a chair near the table. Ms Abdallah picked up a 4-pack of V-drink from the chair and struck Ms Sarkis on the forehead with it. She did so in anger and not out of fear.
According to Ms Abdallah, Ms Sarkis threatened to kill her. I do not accept this evidence. Nor do I accept what Ms Abdallah told Ms Robilliard when she saw her on 7 April 2015 that she had never been in a physical fight before like that and that she tried to tackle Ms Sarkis and that Ms Sarkis had threatened to kill her.
Ms Abdallah ran to the kitchen. Ms Sarkis kicked a tissue box in her direction. Ms Abdallah took two large knives from the knife block on the kitchen bench. She brandished them at Ms Sarkis, who came towards the kitchen. Ms Sarkis was unarmed and had nothing in her hands. Her arms were by her sides. She did not attempt to strike Ms Abdallah when she entered the kitchen.
Ms Abdallah gave evidence at the sentence hearing, which I do not accept, that when she had the knives in her hands, Ms Sarkis again threatened to kill her.
Ms Abdallah struck out with one of the knives and slashed at Ms Sarkis twice before she lunged forward to stab Ms Sarkis in the torso. The knife penetrated at least 7cms into her chest and punctured her lung. I do not accept that Ms Abdallah did not know that the knife had "connected" with her. Ms Sarkis staggered to the table for support. She started to walk in the direction of the front door but managed only a few steps before collapsing on the floor.
Ms Abdallah cast the two knives aside on the kitchen table. At 6.02pm she rang Triple-0 and screamed at the operator, who asked for the address and the phone number, which she gave, and then asked her to tell her what had happened. Ms Abdallah hung up after the operator asked her for a second time what had happened.
The operator called Ms Abdallah back a couple of minutes later on the land line. When the operator asked where the offender was, Ms Abdallah replied "She's here on the floor". Ms Abdallah relied on this answer in her evidence at the sentence hearing to suggest that Ms Sarkis was the aggressor and that Ms Abdallah was in fear of being killed. I reject this explanation. Ms Abdallah knew that she was responsible for the stabbing and that Ms Sarkis could, on no rational view, be described as "the offender".
In the course of the conversation the operator instructed Ms Abdallah as to how to treat Ms Sarkis until the ambulance officers arrived. Ms Abdallah told her that there had been a fight and a vase had been used.
While she was still on the phone to the Triple-0 operator, Ms Abdallah went to the table, picked up the knives and took them to the sink to rinse the blood from them. She then sprayed them with cleaning liquid, wiped them carefully with paper towels and replaced them in the knife block. As she was doing so, she told the operator that she was applying pressure to the wound in Ms Sarkis' chest when in fact she was cleaning the knives.
Once she had thoroughly cleaned the knives, Ms Abdallah returned to Ms Sarkis' side. She started to scream when the operator asked her if Ms Sarkis was still breathing. The ambulance officers arrived shortly afterwards.
Ms Abdallah lied about what had happened to an ambulance officer and the various police officers who questioned her. She told them that someone else had attacked Ms Sarkis. She eventually described the assailant as a woman by the name of Amy, who was tattooed, overweight and Lebanese. She also told police that there were no actual cameras inside her townhouse. Ms Abdallah lied about what had happened to avoid being found out and she lied about the cameras because she knew that if CCTV footage recorded by the cameras inside her townhouse was seen by police, she would be revealed as Ms Sarkis' killer. I do not accept her evidence that she lied because she did not think that anyone would believe that she stabbed Ms Sarkis in self-defence. I am satisfied that Ms Abdallah washed the knives and cleaned them to remove any trace of Ms Sarkis' blood or her own fingerprints from them and replaced them in the knife block so that no one who came to the scene would appreciate that they had been used in the attack on Ms Sarkis.
In the early hours of the following morning, police viewed the CCTV footage and ascertained that it was Ms Abdallah who had stabbed and killed Ms Sarkis and that there was no one else present in the townhouse at the time. Ms Abdallah was arrested and charged with murder. Her immediate response was "It was self-defence". Ms Abdallah referred to this statement in an unresponsive answer in cross-examination in the sentence hearing and added that she had not consulted with lawyers at that point. Although she had not consulted lawyers since she had been charged, she had already spoken with her lawyer, Mr Hajje, over the phone shortly after the stabbing before she signed a crime scene consent form.
Ms Sarkis died of cardiac arrest following a tension pneumothorax. Although cocaine intoxication may have rendered her more susceptible to cardiac arrest, it was an agreed fact that she died as a result of the stab wound which caused oxygen to build up in the chest cavity outside her lung.
Testing of Ms Sarkis' blood revealed that she had ingested cocaine in the hours before her death. Cocaine tends to result in disinhibition, aggression, agitation and extreme confidence. Ms Sarkis was aggressive towards Ms Abdallah after she had been attacked by her on the way out of the townhouse. She was obviously agitated when she smashed the vase, upset the papers and attacked Ms Abdallah, although she was relatively docile prior to that time and did not react violently to Ms Abdallah's earlier rebukes. I accept the evidence of Professor Christie, toxicologist, that Ms Sarkis' behaviour was consistent with an emotional response. The note Ms Sarkis wrote to Ms Abdallah on the afternoon of her death before she took the car indicated an emotional attachment, which is sufficient to account both for her actions and for her apparent lack of fear when Ms Abdallah confronted her with two large knives. In these circumstances I consider Ms Sarkis' behaviour and responses to be largely, if not wholly, explained by her emotions rather than by the cocaine she had ingested.
Moreover, Ms Abdallah did not give any evidence to the effect that she believed Ms Sarkis' behaviour to have been affected by cocaine intoxication at the time she stabbed her. Nor did she say that she herself was affected by cocaine at that time. Ms Abdallah was not subjected to any blood test. Accordingly, there is no evidence to establish whether or not she was affected by any drug at the time of the stabbing or whether she believed Ms Sarkis to be affected.

[4]

The basis for the verdict

A jury which returns a verdict of guilty of manslaughter is not required to specify on what basis the verdict was returned. It is unnecessary that the jurors be unanimous as to the type of manslaughter of which they are satisfied the offender is guilty: R v Cramp [1999] NSWCCA 324; 110 A Crim R 198; R v Dally [2000] NSWCCA 162; 115 A Crim R 582. It is a matter for the sentencing judge to find the relevant facts consistently with the jury's verdict: R v Isaacs (1997) 41 NSWLR 374.
I am not satisfied that Ms Abdallah intended to kill Ms Sarkis. However, I am satisfied that she intended to cause her really serious injuries (grievous bodily harm) when she stabbed her. In these circumstances manslaughter by unlawful and dangerous act is excluded.
Neither counsel contended that the jury could have found manslaughter on the basis of provocation. Nor do I consider that there would be any proper basis for the jury to have returned a verdict of manslaughter on that basis. The deceased's actions of smashing a vase and the offender's mobile phone and the earlier unauthorised use of the car, although provocative, did not cause Ms Abdallah to lose her self-control to the extent required for such a verdict. Although her decision to pick up the kitchen knives was impulsive, it was nonetheless deliberate.
In these circumstances, manslaughter by excessive self-defence is consistent both with my finding as to Ms Abdallah's intention and with the jury's verdict. It was common ground that this was the basis on which I should find facts consistent with the verdict. It follows that it was reasonably possible that Ms Abdallah believed that her conduct was necessary in self-defence. However, Ms Abdallah's conduct was a wholly unreasonable response in the circumstances as she perceived them to be. Not only was she 10 years older than Ms Sarkis, but she was also taller, larger and physically stronger. Although the CCTV footage showed Ms Sarkis attacking Ms Abdallah, Ms Abdallah was relatively unharmed. Later that evening, forensic procedures carried out at the police station on the offender revealed that she had few physical markings of any injury.
Ms Abdallah was easily able to dominate and overpower Ms Sarkis when she wanted to. Further, she owned the townhouse in which they both lived and the car which Ms Sarkis used from time to time. At the time Ms Abdallah stabbed Ms Sarkis, Ms Sarkis was unarmed and posed no physical threat to Ms Abdallah at all. Indeed, Ms Sarkis had tried to leave the townhouse earlier and had repeatedly tried to contact Ms Massih to obtain transport. Whether Ms Abdallah's irrational belief that she needed to stab Ms Sarkis to defend herself was the product of immaturity, a bad temper, or some other cause cannot be determined by the evidence.

[5]

Ms Abdallah's credibility

Ms Abdallah did not give evidence at the trial but did give evidence at the sentence hearing. She had also made statements to Probation and Parole for the Pre-Sentence Report, to Dr Nielssen and Ms Robilliard, to the experts whom she saw at the request of her solicitors, as well as to the authors of character references. I do not regard her as a reliable witness. The disparity between the histories she provided on various occasions is irreconcilable. Moreover, the Crown has established the falsity of much of her evidence and many of her statements.
For example, Ms Abdallah told experts that she had completed her schooling at an "independent school" but in fact she had completed it at Granville TAFE, having been expelled from two schools. She reported that she had completed a Bachelor of Business Studies or Commerce in 2001 although she had not. It does not matter where the offender went to school or what qualifications she has. However, her preparedness to lie does matter because it means that I cannot accept her evidence.
There are other examples. Ms Abdallah saw Ms Robilliard on 7 April 2015 and told her that she had never been exposed to any abuse at home and that, although there were loud arguments, there was no violence. She also said that occasionally she would receive a smack but she never considered that she was disciplined unreasonably and was never frightened by it. However, when she was interviewed by Dr Nielssen in person on 20 April 2015 and by telephone on 22 and 23 April 2015, she told him that she had a "pretty messed up childhood" and that she "used to get beaten up a lot". Dr Nielssen concluded that Ms Abdallah was intoxicated with benzodiazepine medication on 20 April 2015. However, during later telephone conversations with him she did not appear to be affected by drugs and she confirmed the earlier history given.
Ms Abdallah sought to explain these discrepancies by alleging that the experts may have misunderstood what she told them. However, I am satisfied that Dr Nielssen typed the history into his report during the consultations as she gave it to him and that Ms Robilliard took careful and detailed contemporaneous notes.
Ms Abdallah also told Ms Robilliard that she was trying to help Ms Sarkis get off drugs and that she was doing her best to protect and look after her. I do not accept the accuracy of this account, having regard to Ms Abdallah's own drug habit and the fact that she and Ms Sarkis took cocaine together.
I do not accept what Ms Abdallah has said unless it is against her interests or if it is corroborated. For these reasons, little weight can be given to the character references, the Pre-Sentence Report, the reports of Dr Nielssen and Ms Robilliard and little or no weight can be given to her own evidence.

[6]

Ms Abdallah's background and mental condition

The Crown tendered a statement of Charbel Abdallah, the offender's brother, whose evidence was not challenged in cross-examination. I accept his evidence. Ms Abdallah had a difficult adolescence and got into trouble at school. She was expelled from two schools and ultimately did her Higher School Certificate at Granville TAFE. She was, at times, loud and aggressive. At least from 2008 Ms Abdallah was using Xanax and Valium, much of which was prescribed. She was hospitalised for abuse of prescription medication in about 2008 and again in 2009. Although she was taking cocaine daily in the eight months prior to the offence, she was clear of benzodiazepines at that time.
As referred to above, Ms Abdallah was assessed for the purposes of sentence by Dr Nielssen and Ms Robilliard at the request of her solicitors. Dr Nielssen diagnosed an Anxiety Disorder and Substance Abuse Disorder. However, he accepted in cross-examination that his opinion was substantially based on the history that Ms Abdallah had given him. Moreover, he accepted that the anxiety she exhibited when she saw him in April 2015 was consistent with post-traumatic stress disorder, which may have been caused by her killing of Ms Sarkis. Ms Robilliard's evidence to the same effect was as follows: "Whether this emotionally labile presentation and features of paranoia were characteristic of the client in earlier years or has developed over the past 2 years since she was charged with the index offence, is not clear however her stable, high achieving work life prior to this incident would have been difficult to achieve if she had been in a constant state of emotional disequilibrium. Nor would she have had a reason for hypervigilance or persecutory feelings."
I accept that Ms Abdallah may have been suffering from a Substance Abuse Disorder at the time of the offending, by reason of her use of cocaine, although there is no proper basis on which I could find that she was intoxicated with cocaine at the time of the stabbing. I am not, however, satisfied that she was suffering from an anxiety disorder before she stabbed Ms Sarkis. Accordingly, I do not accept Dr Nielssen's evidence that Ms Abdallah's act of stabbing Ms Sarkis was to be explained as a response to a heightened (and flawed) perception of threat that was the result of an anxiety disorder. In these circumstances, the weight to be accorded to general deterrence in the sentencing process is not reduced by her mental condition.

[11]

Mitigating factors

The offence was not part of a planned or organised criminal activity. Nor was there any real planning at all. Ms Abdallah's act of grabbing the knives was, although deliberate, impulsive and hot-headed. The deceased's act of smashing the vase and the mobile phone was provocative, in a childish, impetuous way.
The offender has, in substance, no record of previous convictions. However, I am unable to find that she was a person of good character. Ms Abdallah relied on a substantial number of character references. As I have said, these references have very little weight because of the offender's lack of credibility; they are based on false assumptions which are, to a large extent, inconsistent with the evidence. Several authors of these references were under what I consider to be the misapprehension that Ms Abdallah had taken Ms Sarkis under her wing to provide guidance to her and to help her with her substance abuse problems. In light of the agreed fact that they took cocaine together, this conclusion is untenable. This is not to impugn the credit of those who gave them but rather to acknowledge Ms Abdallah's capacity to dissemble and create a false impression.
I am not persuaded that Ms Abdallah is unlikely to re-offend. I do not consider her to have good prospects of rehabilitation. Mr Stanton accepted that Ms Abdallah has a long-standing difficulty with substance abuse although, as I have said, there is no evidence to establish that she was under the influence of any drug when she stabbed Ms Sarkis. I do not accept that Ms Abdallah is remorseful. I do not regard her as having accepted responsibility for her actions in stabbing Ms Sarkis. Her evidence at the sentence hearing that she "accepted the jury's verdict" amounted to no more than an acknowledgement of the inevitable. At the time of the sentence hearing she was still trying to justify her conduct and to blame Ms Sarkis for what occurred. Specific deterrence is a relevant purpose of the sentence to be imposed.

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