R v Abdallah

The basis for the verdict

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.

Ms Abdallah's credibility

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.

Ms Abdallah's background and mental condition

1. 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.
2. 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."
3. 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.

Sentencing - manslaughter

1. I was taken to a number of cases involving the sentencing of offenders for manslaughter. It is well recognised, that of all offences, manslaughter produces the greatest variety of circumstances affecting culpability. Consequently there is a substantial range in the sentences imposed for this offence: The Queen v Lavender [2005] HCA 37; 222 CLR 67, per Gleeson CJ, McHugh, Gummow and Hayne JJ at [22]. Mr Stanton submitted that a non-custodial sentence was appropriate as the present case was wholly exceptional and fell within a similar category to R v Silva [2015] NSWSC 148 where considerations of specific and general deterrence were found not to be relevant. I reject this submission. I do not regard the present case as particularly exceptional: it is yet another example of an impulsive act of violence involving a knife leading to death. Considerations of both specific and general deterrence are relevant in the present case.
2. The fundamental touchstone for sentencing in such cases is that there has been an unlawful taking of human life for which Ms Abdallah has been found criminally liable and for which she must be sentenced to imprisonment. Principles of punishment, retribution and deterrence, both general and specific, play their part. Particular regard must be had to the features relevant to the seriousness of the offence as well as any mitigating circumstances.

Maximum penalty

1. The maximum penalty is an indication of the relative seriousness of the offence (Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [31], per Gleeson CJ, Gummow, Hayne and Callinan JJ) and is therefore to be taken into account under s 21A(1)(c) of the Crimes (Sentencing Procedure) Act 1999 (NSW). The maximum term of imprisonment for manslaughter is 25 years: s 24 of the Crimes Act 1900 (NSW). There is no standard non-parole period.

Seriousness of offence

1. The relationship between Ms Abdallah and Ms Sarkis appeared to be a close, and somewhat volatile, one. Ms Abdallah was not averse to screaming at Ms Sarkis and using violence against her, as she had done earlier that day on Crawford Road. It appeared that Ms Abdallah used words and violence to discipline, dominate and control Ms Sarkis. Although Ms Sarkis at times responded by hitting Ms Abdallah and screaming at her, her blows were relatively ineffectual and did not cause any substantial injury.
2. When Ms Abdallah withdrew the knives from the block in the kitchen, she escalated the conflict and overreacted, with disastrous and irreversible consequences. To endeavour to resolve a dispute or disagreement with violence is reprehensible and, in the circumstances of this case, particularly senseless since Ms Sarkis posed no real threat to Ms Abdallah. Although I must find, consistent with the jury's verdict, that it was possible that Ms Abdallah genuinely believed that it was necessary to stab Ms Sarkis with a knife to defend herself, any such belief was, as I have said above, wholly unreasonable. The cause of Ms Sarkis' death was the stabbing; the fact that some other circumstance, a heightened risk of cardiac arrest by reason of cocaine intoxication, contributed to the death is not, in the circumstances of this case, a mitigating circumstance. I regard the seriousness of her offending as high.

Aggravating factors

1. A knife is a dangerous weapon. The two knives selected by Ms Abdallah were large and sharp. The knife with which she stabbed Ms Sarkis readily pierced her clothing and penetrated at least 7cms into her chest. The offence of manslaughter is aggravated by the use of the knife: s 21A(2)(c) of the Crimes (Sentencing Procedure) Act.
2. Ms Abdallah was, at the time of the offending, on conditional liberty as she was subject to a 12- month bond pursuant to s 10 of the Crimes (Sentencing Procedure) Act for the offence of driving while her licence was suspended on 23 October 2012. This is an aggravating factor: s 21A(2)(j) of the Crimes (Sentencing Procedure) Act.

Mitigating factors

1. 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.
2. 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.
3. 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.

Special circumstances

1. The offender submitted that there were special circumstances that would warrant a departure from the statutory ratio between the non-parole period and the total term as provided for in s 44 of the Crimes (Sentencing Procedure) Act. Mr Stanton referred to the offender's substance abuse and the need for supervision and rehabilitation within the community.
2. Having regard to the sentence to be imposed, I consider that a parole period in accordance with the statutory ratio will be sufficient for supervision of the offender within the community. I am not satisfied that there are special circumstances.

Pre-Sentence custody

1. The offender was in custody from her arrest on 10 February 2013 until her release on bail on 21 June 2013. She was held in custody between 28 and 31 July 2013 due to a breach of bail conditions. Following her conviction the offender remained on bail until bail was revoked on 24 April 2015. The appropriate date for commencement of the sentence is 8 December 2014.

Victim impact

1. In the course of the sentencing hearing the Crown tendered Victim Impact Statements by the deceased's mother, Mary Sarkis, and her sister Christine. Mrs Sarkis' statement was read out by a support person. Christine Sarkis read out her own statement. I accept without qualification the loss of the deceased which is felt on a daily basis by those who loved her. I also accept that there has been no lessening of sadness since her death. I take this opportunity to extend my personal sympathies to the family and friends of the late Suzie Sarkis.
2. As requested by the Crown, I have taken into account, in determining the punishment, the harmful impact of Ms Sarkis' death on the members of her immediate family as an aspect of the harm done to the community: s 28(4) of the Crimes (Sentencing Procedure) Act. Each of us is part of the whole community. When any one of us is wrongfully killed, all of us are harmed, although the loss is felt principally by those closest to the deceased. Wrongful killing is not only a fundamental breach of the peace but also a breach of the social contract of the highest order. Institutionalised justice, which has replaced private retribution, must recognise this harm and endeavour to redress it by imposing an appropriate sentence.

Sentence

1. Katherine Abdallah: You are convicted of the manslaughter of Suzie Sarkis. I sentence you to a term of imprisonment of 11 years, commencing 8 December 2014, with a non-parole period of 8 years and 3 months. The earliest date upon which you are eligible for release on parole is 8 March 2023.

Amendments 11 February 2021 - Publication restriction removed - judgment published DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 February 2021