R v ANTAKY

IN THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION

14 September 2007 Regina v John ANTAKY REMARKS ON SENTENCE 1 HIS HONOUR: On 5 February 2007 John Antaky was arraigned on a charge:- "For that he on 4 October 2005 at Guildford West… did murder Joseph Harb. 2 He pleaded not guilty. On 8 March 2007 a jury found him not guilty of murder but guilty of manslaughter. Having regard to the issues that were left to the jury, the basis of the jury's verdict was the legal doctrine of substantial impairment by abnormality of mind, embodied in s23A of the Crimes Act. Furthermore, in light of the evidence, it is the only rational basis upon which manslaughter could be found. 3 It falls to me to sentence the Prisoner. In the determination of the sentence I am required to make findings of fact which are consistent with the jury's verdict. In doing so, any matters tending to aggravate the prisoner's criminality must be found beyond reasonable doubt but it is sufficient to find matters tending in mitigation on the balance of probabilities. 4 The circumstances of and immediately preceding the death of Joseph Harb were as follows. During the afternoon of his death Joseph Harb had been engaged in an argument with his wife Isabelle at her home at 29 Leach Road, Guildford West. Later there was an altercation, involving a limited degree of assault, between him on the one hand and Isabelle and her sister Janette Atieh at the latter's house at 35 Leach Road, Guildford West. Some of the participants would seem to have reacted by screaming. The incident or its aftermath attracted the attention of neighbours and others in the street. Some, including Therese Sleiman who lived opposite Janette at 34 Leach Road, sought to comfort Isabelle and after a time Mrs Sleiman, Isabelle and the deceased repaired to the kitchen of Mrs Sleiman's house. Some little time then elapsed, enough for Mrs Slieman to go across the road and talk to Janette and return. 5 During or after the altercation Saad Antaky, a brother of the Prisoner, Janette and Isabelle, had been rung, probably by Janette. He drove to Leach Road and parked in Janette's driveway. He was informed that the deceased was at Mrs Sleiman's house and then ran across the road and into the premises. He went through to the kitchen at the back and then commenced to attack the deceased. Others then entered the kitchen including a neighbour Ned Kozar, Mrs Sleiman's nephew John, her daughter Christian, Janette and her daughters Bernadette and Therese. Efforts were made by a number of these persons to break up the fight that was occurring between the deceased and Saad Antaky. 6 Also during or soon after the altercation, Janette's daughter Bernadette Agnas, had telephoned the Prisoner. She spoke to him in Arabic using terminology which is susceptible of a variety of meanings. The Prisoner's account and understanding of the conversation as he gave it in evidence was as follows:- The Prisoner: What's wrong. Bernadette: We have trouble with the monster.

The Prisoner: This is not my business, call the police. Bernadette: I did. The Prisoner: Ring again. Bernadette: He killed my mother and my aunty. 7 According to the Prisoner nothing else was then said. Other evidence, which I prefer, indicates that the Prisoner said "I'm coming" or "I'm coming to see what's going on". 8 In an endeavour to inform the jury as well as possible of what was said, I allowed Bernadette to give evidence of part of the conversation in Arabic and then have it translated. She also gave an account in English and, for present purposes, it is sufficient to quote that version:- The Prisoner: What's wrong, uncle? (sic) Bernadette: Please uncle can you come. We're having trouble with the monster. The Prisoner: Please call the police. Bernadette: They already have been called, they're not coming. The Prisoner: Please try again. Bernadette: But Haulor, please come. He has bashed, slashed, murdered my mum. The Prisoner: I'm coming. 9 Other evidence in the case was to the effect that "haulor" means "uncle". Mrs Agnas said that the meaning "bashed, slashed, murdered" had been conveyed or expressed by her in one Lebanese word spelt or pronounced as or similar to "Atulla". That the word or similar variations of it means or may include the meaning "He killed her" was confirmed by evidence of an interpreter. 10 Evidence from the Prisoner and his wife was to the effect that at the time of receipt of this telephone call he and his family were in a motor vehicle heading for a rifle range where the Prisoner, from time to time, indulged in shooting as a pastime. He said that at the time he had with him a revolver, then unloaded, and 6 rounds of ammunition. The Prisoner said that after the phone call he turned the car around, drove his wife and their children back to their home, left them there and drove off in the car to Leach Road. 11 Upon the basis of telephone records the Crown submitted that the Prisoner was in fact at home when he received the telephone call and by inference made a deliberate decision there to arm himself and proceed to where Bernadette and the deceased were. Although I have grave reservations as to the reliability of the evidence of the Prisoner and his wife in respect of the matters to which I have just referred, I am not prepared to find beyond reasonable doubt that the Prisoner's account is false. 12 At some stage the Prisoner loaded the revolver. On arriving in Leach Road, the Prisoner parked the car outside 29 Leach Road, apparently found out the identity of the house where the parties were, walked to it, entered and walked through to the kitchen. He entered the kitchen with the gun in his hand and, ignoring or virtually ignoring his relatives and others in the kitchen walked straight up to the deceased and fired 5 shots into him. Gunpowder residue shows that one of the shots was fired from no more than 400mm away. The track of the bullets indicates that while at least one was fired while the deceased was standing, one or more were fired while he was falling or had fallen to the floor. 13 The Prisoner then walked out of the premises. He was followed out by a number of the others including Bernadette. She entered her car and then drove to where the Prisoner was a little way down the street. She asked him a number of times to get into her car. Eventually he did and asked to be taken to the police station. She protested and he threatened to kill himself if she would not comply, putting the gun to his head by way of reinforcing the threat. The Prisoner also asked Bernadette to fetch his medicine. 14 Bernadette did drive the Prisoner to the police station where he handed over the revolver which by then he had unloaded, and was arrested. 15 There was evidence from Saad Antaky that at or immediately before the shooting the Prisoner was heard to say words to the effect, "I've had enough". No other witness corroborated this evidence and there was some evidence to the effect that the Prisoner said nothing but such a statement does seem to accord with the history, circumstances, and the Prisoner's actions. 16 Because it may throw some light on the motivation for the killing and on the Prisoner's mental state at the time it is appropriate to refer to the evidence of past events involving the Prisoner and the deceased. It is clear that the latter was, and was believed by the Prisoner to be troublesome. The Prisoner was informed that the deceased had abused the Prisoner's parents and, not long after Mrs Antaky senior's death had remarked to the Prisoner's father that he would follow. The Prisoner was also informed that on an occasion when Isabelle was due to attend court to support her mother's application for an Apprehended Violence Order against the deceased, he had locked her in a room to prevent her attending. These matters distressed the Prisoner. 17 According to the Prisoner, the deceased prevailed on the Prisoner not to view his mother's body prior to her funeral, an event the Prisoner regretted. The Prisoner also recounted an incident when the deceased had placed a gun to the Prisoner's head and then struck the Prisoner with it. According to the Prisoner, the deceased also threatened the Prisoner that if his sister did not drop a court case against the deceased, the Prisoner and his family would be killed and, on another occasion, to wipe out the Prisoner's family. The deceased would also seem to have created tension by informing the Prisoner's wife, inaccurately, that the Prisoner had been with a prostitute. 18 On the other hand, during a few weeks that Isabelle's evidence indicates were in about August or September 2005, the Prisoner attended at 29 Leach Rd every 2 or 3 days at the deceased's invitation, and she saw them joking, laughing and drinking together. The Prisoner said that his conversations with the deceased at this time always revolved around bringing together compromise between Isabelle and the deceased but in light of Isabelle's evidence, I am not persuaded that that was the sole topic of conversation between the Prisoner and deceased nor that, as the Prisoner told Dr Allnutt, daily the deceased would order the Prisoner to attend his house. The Prisoner also said that he had been suicidal and had gone away for a holiday to Moree to escape the pressure imposed by the deceased. 19 There is no doubt that prior to the occasion of the shooting the Prisoner had experienced some emotional or psychological problems. There was evidence I accept that he had suffered from a number of panic and anxiety attacks, agrophobia and/or claustrophobia and then, from no later than the beginning of June 2005, suffered from depression and, for this and anxiety was being treated with Zoloft. Some of his symptoms may have emerged much earlier. He attended an anxiety clinic in June to August, stopping his attendances then because they had taught him to manage an attack. At the clinic, the Prisoner seems not to have attributed his anxiety to the deceased although clinical notes from the time indicate mention of other factors. 20 The Prisoner's claim of diminished responsibility derived support principally from a psychologist Dr Lennings and a psychiatrist Dr Allnutt. (Another psychologist Ms Robilliard gave evidence but I do not find it necessary to refer to her evidence here.) Dr Lennings' view was that at the time of the shooting the Prisoner was in a dissociative state and was unable to control his mind. He said it was hard to decide whether the Prisoner had a capacity to judge right from wrong although it was likely the Prisoner would have lost his capacity to be rational in some of the decisions he made. He said the Prisoner would not have known what he was doing at the time. 21 Dr Allnutt's conclusion was that the Prisoner was suffering symptoms consistent with an anxiety and depressive disorder as well as post-traumatic stress symptoms and vulnerable to losing control. He opined that the Prisoner had experienced a significant reduction in his capacity to control his actions being driven by overwhelming emotion. He said it was possible - he put it no higher - that the Prisoner experienced reduction in his capacity to know right from wrong. Dr Allnutt did not think the Prisoner was disassociated to the extent that he was unconscious. 22 Both doctors relied on information contained in prior medical histories and in prison records and to an appreciable degree on information given to them by the Prisoner. As has been said, he gave evidence in the trial and it is appropriate to say that I have considerable reservations about a deal of what he said both then and to one or other of the doctors. For example, to Dr Allnutt the Prisoner purported to remember what he was feeling at the time but not to remember what had occurred. I remain to be persuaded that there is not inconsistency in these matters and, although I do not need to rely on the fact, it seems to me that Dr Allnutt takes the same view. 23 In evidence the Prisoner said that on receiving the call from Bernadette, his "head almost swelled up and I didn't see anything, I didn't know anything. And it occurred to me because he had said he wanted to kill the whole family he has - he had started. And as soon as I heard that my head swelled up and I lost consciousness all together". He said he remembered nothing from then until some time after the shooting. He gave a similar account to Dr Allnutt. To Dr Lennings the Prisoner said that he had no memory of the incident, confining his account of pre-shooting events to previous days. This lack of recollection was a significant factor in Dr Lenning's conclusion. 24 However, the Prisoner's actions seem to me to reveal a deal more of capacity for rational decision making than his evidence would suggest. I do not ignore the evidence to the effect that a person whose capacities in the respects contemplated by s23A are substantially impaired is capable of keeping off the road and undertaking tasks such as driving but it was only after the Prisoner was informed (probably twice) that his sensible preference for having the problem of which Bernadette apprised him dealt with by police was not being achieved that he determined to attend himself at Leach Road. He then was sufficiently in command of his decision making faculties to take his wife and child home before proceeding to Leach Rd and, on arriving there, to ascertain where the deceased was. 25 I do not ignore the fact that, on arriving in Mrs Sleiman's kitchen, the Prisoner seems, prior to shooting the deceased, to have ignored the other members of his family, including his brother and Bernadette's mother and aunty who on one interpretation of what the Prisoner had been told had been killed, nor what on one view is a certain lack of logic in killing someone in the presence of numerous eye-witnesses. Certainly, it is to be inferred from these factors and the Prisoner's other actions that, by the time he entered the kitchen, the Prisoner had a fixed determination to kill the deceased. His actions demonstrate that, whether he said so or not, he had "had enough". 26 In the result, I do not accept that the Prisoner had no recollection of events. Factors or evidence to which I have referred, combined with Dr Allnutt's qualifications and other evidence lead me to prefer what he had to say than Dr Lenning's evidence that the Prisoner was in a disassociated state. Thus I accept Dr Allnutt's opinion that at the time of the shooting the Prisoner had experienced a significant reduction in his capacity to control his actions, being then driven by overwhelming emotion. 27 My reservations about the Prisoner's credibility, and Isabelle 's account of the Prisoner and deceased, laughing, joking and drinking, also lead me to being very doubtful whether the deceased threatened to kill the Prisoner's family although, if forced to a conclusion, I would find probably the threat was made. I accept that the perceived need to have a break from the deceased was at least a contributing factor to the Prisoner going to Moree for a holiday. How seriously the Prisoner contemplated suicide as he had said, I do not know. 28 A Victim Impact Statement on behalf of Isabelle Harb and her and the deceased's children was tendered during the sentencing proceedings. The statement deals with the loss she and they have suffered in consequence of the offence although, understandably given the evidence in the trial as to the relationship between Mrs Harb and the deceased and the latter's nature, recognises at least on the part of Mrs Harb a mixture of emotions. In the case of murder and manslaughter, there are limitations as to the use the Court can put such statements but they do help to bring home the loss offences such as that presently under consideration create. 29 I turn to the Prisoner's subjective circumstances. He was born in Beirut on 9 September 1955 and was thus 50 at the time of his offence. He came to Australia with his parents when he was 15. He has had limited education. He suffers a physical disability as a result of polio and endured an accidental gunshot wound when he was young. After arriving in Australia, he held a variety of jobs although some years prior to the offence - his own evidence suggests it was 1990 or 1991 - he went on the invalid pension on account of physical disabilities. He has no previous convictions. He has been in custody since 4 October 2005. 30 There was tendered on sentence a report from Dr Nielssen, a psychiatrist who interviewed the Prisoner on 31 July last for the purposes of these proceedings. Dr Nielssen's conclusions included the following:- " PSYCHIATRIC DIAGNOSES 1. Major depression, in remission 2. Panic disorder, in partial remission. OPINION Mr Antaky had a major depressive illness complicated by severe anxiety symptoms from which he has largely recovered as a result of intensive medical and psychological treatment whilst in custody… Mr Antaky reported symptoms of post-traumatic stress disorder arising from the offence in the form of intrusive anxiety provoking images of events leading to the offence. He also reported a very difficult period following his incarceration, as he had never been to prison before. He was forced to move to the protection wing of the jail because of his age and physical disabilities and because he was threatened by other inmates because of his Lebanese Christian background. Other sources of distress include the financial stress on his family produced by the loss of income following his incarceration and the loss of assets and savings used to pay legal expenses… Mr Antaky was assessed to have a relatively good prognosis. Firstly he has responded to treatment for depression and was assessed to be fairly positive about his future to the extent that he has contemplated returning to work… There was no history of any previous violence or criminal activity (or) … significant substance abuse." 31 There was also tendered a reference from Father Hani advising that the Prisoner had attended church every Sunday, would participate in mid-week religious discussions and was a voluntary helper in a number of areas. 32 In light of these matters, which I accept, I am satisfied that the Prisoner is, apart from the subject offence, a man of good character, that there is no reasonable possibility of the Prisoner re-offending, and that prison has been harder on him than might be regarded as normal. Without confining attention to this element, I observe that claustrophobia is not the most useful attribute for someone who has to adjust to prison life. In this connection I accept also that in loss of his family savings, his offence has imposed a penalty on him in addition to any sentence I impose (and a penalty that most offenders these days do not suffer). It is proper to recognise that, while there is some prospect that the Prisoner may well spend further some time in protection, the practical options for his incarceration post-sentence are such that I do not infer that he will spend the whole of his period in custody on protection. 33 Against this background, I turn to some of the legal factors to be taken into account. Although s23A of the Crimes Act has been reformulated since, many are encapsulated in the following passage from the judgment of the Court of Criminal Appeal in R v Blacklidge (Unreported, NSWCCA, 12 December 1995):- "It has long been recognised that the circumstances which may give rise to a conviction for manslaughter are so various, and the range of degrees of culpability is so wide, that it is not possible to point to any established sentencing tariff which can be applied to such cases. Of all crimes, manslaughter throws up the greatest variety of circumstances affecting culpability. At the same time, the courts have repeatedly stressed that what is involved in every case of manslaughter is the felonious taking of a human life. That is the starting point for a considerion of the appropriate penalty, and a key element in the assessment of the gravity of the objective circumstances of the case ( R v Dodd (1991) 57 A Crim R 349; R v Hill (1981) 3 A Crim R 397 at 402.) When the basis of a finding of manslaughter is diminished responsibility, pursuant to s23A of the Crimes Act, what is nevertheless ordinarily involved, and what is involved in the present case, is a conclusion that the taking of human life was the consequence of a deliberate and willed act, performed with intent to kill or cause grievous bodily harm, or with reckless indifference to human life. The abnormality of mind substantially impairs the offender's mental responsibility for his or her act but it does not negate such responsibility. The reduction in the capacity for self control which results from the abnormality of mind diminishes the responsibility, but it does not excuse the act. ( R v Low (1991) 57 A Crim R 8). 34 Relevantly, s23A(1) now provides:- A person who would otherwise be guilty of murder is to be convicted of murder if: (a) at the time of the acts or omissions causing the death concerned, the person's capacity to understand events, or to judge whether the person's actions were right or wrong, or to control himself or herself, was substantially impaired by an abnormality of mind arising from an underlying condition, and (b) the impairment was so substantial as to warrant liability for murder being reduced to manslaughter. 35 It is implicit in the expressions "substantially impaired" and "impairment .. so substantial as to warrant liability for murder being reduced to manslaughter" that there will be variations of degree. Some impairment may be gross, some may only just fall within the description of "substantial" so as to warrant the reduction. The presence and relative weight of other factors has also to be taken into account. See as to these matters, R v Jans [2000] NSWSC 525 at [23]; R v Keceski (Unreported, CCA, 10 August 1993, per Mahoney JA); R v Troja (Unreported, CCA, 16 July 1991 towards the end of the section entitled "The circumstances in which the deceased was killed". 36 In this case I am not persuaded that the impairment is more than marginally above the bottom of the scale. Indeed, I am satisfied that it is not. Leading me to this conclusion are principally Dr Allnutt's evidence (including its limitations), the Prisoner's response to Bernadette, his decision to take his wife and child home, that there was time and opportunity to reflect between receiving Bernadette's message and the shooting, and the limited nature of his emotional, psychological or psychiatric problems prior to hearing from Bernadette. I do not suggest that those problems were insignificant - Drs Lennings and Allnutt indicate they were not - but by comparison with many persons suffering such problems and who come before the courts, the Prisoner's fall at the lower level. 37 The remarks I have quoted from R v Blacklidge and others in that case and other decisions make it clear that there is no "tariff" to be applied in cases such as this. Reference to previous decisions makes it clear that a wide range of sentences has been imposed, ranging from a good behaviour bond - R v Bateman [2000] NSWSC 867; R v Jans (op cit) to a sentence of 13 years and 4 months (including a non-parole period of 10 years - R v Kecevski (op cit). There are many cases in between which I have considered. 38 Section 3A of the Crimes (Sentencing Procedure) Act set out the purposes for which a court may impose a sentence:- (a) to ensure that the offender is adequately punished for the offence. (b) to prevent crime by deterring the offender and other persons from committing similar offences. (c) to protect the community from the offender. (d) to promote the rehabilitation of the offender. (e) to make the offender accountable for his or her actions. (f) to denounce the conduct of the offender. (g) to recognise the harm done to the victim of the crime and the community. 39 Paragraph (a) provides little guidance. The Prisoner's prior history leads to the conclusion that personal deterrence of him from committing similar offences is a factor of no weight. That his offence was a product of an abnormality of mind means that general deterrence is of less weight than otherwise. That is not to say it is of no weight - see R v Engert (1995) 84 A Crim R 67 at 70 - 71. 40 Protection of the community from the Prisoner and the promotion of his rehabilitation argue with no weight in favour of a heavier sentence. However, the factors referred to in paragraphs (e) to (g) are of significance. As this Court said in R v Gordon (unreported, CCA, 7 February 1994):-

"Retribution, or the taking of vengeance for the injury which was done by the offender, is also an important aspect of sentencing: Regina v Goodrich (1952) 70 WN 42 at 43; Regina v Cuthbert (1967) 86 WN (Pt 1) 272 at 274; Regina v Rushby (at 598). Not only must the community be satisfied that the offender is given his just deserts, it is important as well that the victim, or those who are left behind, also feel that justice has been done." 41 It would be wrong, by concentrating on the impairments of the Prisoner to forget or fail to recognise properly that the deceased has been deprived of life. 42 (Lest it be thought that the matter has been forgotten, I should expressly acknowledge that giving operation to general deterrence will have some impact so far as the purposes referred to in paragraphs (e) to (g) are concerned.) 43 In seeking to give, in the determination of the sentence to be imposed, proper weight to these purposes and to the Prisoner's abnormality of mind and impairment, it is to be borne in mind that, in having reduced what would otherwise be murder to manslaughter, that abnormality has already been given substantial weight. That is not to say that, during the sentencing exercise for manslaughter the abnormality is to be ignored. It is not. However, it would be wrong also to ignore the operation of, and in one sense leniency, already afforded to an offender on account of his impairment. 44 I am also required to have regard to s21A of the Crimes (Sentencing Procedure) Act. I do not regard it as necessary to detail seriatim the aggravating features that may be present in the Prisoner's offence or indulge in a dissertation as to whether his offence does satisfy any of the descriptions (that are not elements of his offence). If there are any, their nature and extent is so insignificant that I would not increase his sentence on account of them. 45 I have said enough to demonstrate that a number of the mitigating factors listed in s21A(3) are attracted. To those recognised in what I have said, I add the following. While my doubts about the Prisoner's credibility lead to me being not satisfied that all he said about the deceased was accurate, his evidence and that of other witnesses does satisfy me that there was a deal of provocation in the deceased's past conduct to which Bernadette's call acted as a fuse (though I am not satisfied the Prisoner believed the deceased had actually killed anyone). I recognise that there was no dispute in the trial that the Prisoner killed the deceased and that the issues were confined to those arising under s23A and provocation (which I declined to leave to the jury). 46 I have considered also the question of special circumstances. The fact that this is the first time the Prisoner has been imprisoned, his disabilities and conditions of incarceration are capable of being regarded as special circumstances. However, in the circumstances here I would not alter the statutory relativity between parole and non-parole periods on account of such matters. The absence of any significant possibility that the Prisoner will re-offend or will need supervision on parole makes it inappropriate to provide any extended parole period and I intend to impose the minimum non-parole period that I think his offence merits. 47 For the offence of the manslaughter of Joseph Harb I sentence the Prisoner to imprisonment for a non-parole period of 6 years commencing on 4 October 2005, with a balance of term of 2 years commencing on 4 October 2011. I record as the date upon which it appears to me that the Prisoner shall be eligible for parole 4 October 2011. **********

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