214 A Crim R 191
O'Neil-Shaw v R [2010] NSWCCA 42
Paxton v R [2011] NSWCCA 242
50 NSWLR 409
R v Lewis [2001] NSWCCA 448
R v Merritt [2004] NSWCCA 19
Source
Original judgment source is linked above.
Catchwords
164 A Crim 126
Muldrock v The Queen [2011] HCA 39244 CLR 120
Ng v R [2011] NSWCCA 227214 A Crim R 191
O'Neil-Shaw v R [2010] NSWCCA 42
Paxton v R [2011] NSWCCA 24250 NSWLR 409
R v Lewis [2001] NSWCCA 448
R v Merritt [2004] NSWCCA 1991 ALJR 131
The Queen v Olbrich [1999] HCA 54Mr DT Scully (Crown)
Mr MJ Ierace SCMr RJ Wilson (Offender)
Judgment (15 paragraphs)
[1]
Background to the Offence
In the course of the Court's reasons for verdict, a number of findings of fact were made concerning the background to the offence and the offence itself. It is not necessary to repeat the detailed findings made in that judgment, which should be read together with this sentencing judgment. It is appropriate, however, to state the essential aspects which bear directly upon the task of sentencing the Offender.
The Offender was born Anastasia Droudis in July 1979 of Greek Orthodox background. So far as the evidence reveals, there is nothing to suggest any criminal conduct on the part of the Offender until she came to meet Monis in about 2003.
The reasons for verdict describe many features of Monis' life in Australia. Monis may be described accurately as an evil man. He exploited what life in Australia offered to him and he used persons with whom he came into contact. A psychological profile of Monis was referred to in the reasons for verdict (at [678]). Monis' personality was marked by, amongst other things, a grandiose sense of self-importance, a lack of empathy and a demonstrated capacity for exploitative behaviour and deceitful conduct.
I have found that Monis planned the murder of his former wife, although he seemingly was not prepared to carry out the killing himself, with his trusted ally, the Offender, doing so on his behalf.
It is common knowledge that Monis died on 16 December 2014 in the Lindt Café in Sydney as a result of his own criminal (and murderous) acts. No one mourns his passing and many have been left to grapple with the consequences of his destructive acts.
Yet, what is clear is that the Offender formed a very close bond with Monis which persisted for years and intensified in the period between 2012 and 2014. As noted in the reasons for verdict, the Offender and Monis had a "highly unusual and longstanding relationship" (at [566]).
Monis had come to Australia from Iran in about 1996. Monis went by various names and, between about 2000 and 2008, he worked as a type of spiritual healer and clairvoyant. As the reasons for verdict reveal, Monis met many women in the course of his spiritual healing business and had sexual contact with a number of them (at [94]).
In early 2003, Monis met Helen Lee after she responded to an advertisement in a community newspaper with respect to his spiritual healing business. They formed a relationship and married in August 2003. Sons were born of the marriage in 2004 and 2008.
Monis and the Offender commenced an intimate relationship by at least 2006 and their relationship continued, with varying degrees of intensity, until 21 April 2013 and beyond.
It is apparent that Monis had a great impact upon the Offender, with her converting to Islam and changing her first name from Anastasia to Amirah by July 2008. The Offender has a daughter from an earlier relationship who was born in 2001. As a result of the Offender's relationship with Monis, her daughter converted to Islam as well.
A clear example of Monis' grandiose sense of self-importance may be seen in his self-appointment as "Sheikh Haron", with a website established in that name as a vehicle for hateful and offensive propaganda. A powerful indicator of the impact of Monis upon the Offender may be seen from her activities in 2008 and 2009 appearing in extreme and offensive videos associated with the Sheikh Haron website utilised by Monis.
The Offender appeared in 11 videos in 2008 and 2009 under the guise of "Sister Amirah". She appeared dressed in a black niqab so that her eyes only were visible. She recited, with feeling and passion, scripts written by Monis. In the course of lengthy presentations, the Offender praised Osama Bin Laden, delivered a fatwa against then President-elect Barack Obama for apostasy (allegedly abandoning his Muslim faith for Christianity), expressed happiness about the Holocaust, the September 2001 terrorist attacks in the United States of America and the Bali bombings in October 2002, described the Bali bombers as martyrs and called upon people to join the army of Islam and warned the then Prime Minister, Kevin Rudd, that Australians would be attacked and killed by Muslims (at [104]-[107]).
The Offender uncritically adopted and espoused Monis' vile beliefs and acted in public in support of him in public protests in June 2008 (at [117]-[119]) and November 2009 (at [140]-[141]). In addition, the Offender actively assisted in highly offensive activities with Monis directed towards the families of deceased Australian servicemen and a deceased Australian Trade Commissioner in 2008 and 2009 (at [120]-[138]).
These activities led to the Offender, who had no prior convictions, being charged with Commonwealth offences in July 2010. On 6 September 2013, the Offender pleaded guilty to one count of aiding and abetting Monis in the offensive use of the postal service, for which she was placed on a good behaviour bond. Monis pleaded guilty to 12 offences and was dealt with by way of a community service order and a good behaviour bond. Even on this occasion in September 2013, some four months after the murder of Helen Lee, the Offender assisted Monis by filming him outside the Downing Centre where they had both been sentenced, with her smiling as Monis spoke to the media defending the highly offensive letters which had been sent to families of deceased Australian servicemen (at [142]).
Between 2009 and 2012, Monis was involved sexually with a number of women apart from his then wife, Helen Lee. Although the Offender remained involved with Monis during this period, she was one of a number only.
In June 2011, Helen Lee determined to end her marriage to Monis and separated from him. The two boys continued to live with Helen Lee. In August 2011, Monis commenced custody proceedings with respect to the two boys. The course of the custody proceedings was described in detail in the reasons for verdict (at [152]-[163]).
Female M had met Monis through his spiritual healing business and had become engaged to him. In the period leading up to May 2012, it appears that Female M was the centre of Monis' attention.
Female M died of natural causes on 26 May 2012. From then on, the Offender became the central focus of Monis' attention. The Offender and Monis were regularly and constantly in the company of each other. Monis' sons and the Offender's daughter interacted with each other, and with Monis and the Offender, in ways which indicated long-term plans for the future on the part of the Offender and Monis.
Although some of the women with whom Monis had been involved (apart from Helen Lee and the Offender) remained in contact with him, I was well satisfied that the only relationship which Monis had after May 2012 was with the Offender.
On 5 July 2012, Monis abandoned his custody application (with respect to his two sons) by means of an extraordinary letter directed to the Presiding Federal Magistrate, with Monis indicating his intention to file an application "in God's court" (see [164]-[165]). I am satisfied that Monis took this course because he well knew by that time that Helen Lee would be granted custody of the children by the Court.
From July 2012, the Offender and Monis became increasingly close involving, amongst other things, child access visits where Monis encouraged his sons to address the Offender as if she was their mother (see [166]-[191], [200]-[226]). Monis filmed these child access visits so that there was a direct opportunity for the Court to observe the interaction between the Offender, Monis and the three children.
Between January and April 2013, Monis and the Offender had together taken steps towards Helen Lee and her partner, Jayesh Goundar, which were intended to unsettle and irritate (at the least) Helen Lee with these steps bringing about that result (see [192]-[226], [756]).
I was satisfied that Monis had planned for some months before 21 April 2013 to murder Helen Lee (see [356]).
His plan was to secure custody of his two sons so they could live in a family unit also comprising the Offender and her daughter. Monis approached members of the Rebels Outlaw Motor Cycle Gang ("OMCG") (which he had attempted to join) but was not taken seriously and was rebuffed (see [232]-[235]).
By 10 April 2013, Monis planned the murder of Helen Lee with the crime to take place at the rented Werrington apartment utilised by him for the purpose of child access visits. Monis and the Offender took out home contents insurance and life insurance on 10 April 2013 with these steps pointing to the implementation of the plan (see [237]-[245]). Tellingly, the home contents insurance policy taken out by Monis on the Werrington unit included cover for water damage, indicating an expectation on his part that the third-floor unit would suffer damage from water used to extinguish a fire (see 356).
Although the Offender had clearly sided with Monis between January and April 2013, during the various tense events involving Helen Lee, it was not until about 10 April 2013 that the Offender became an integral and knowing part of Monis' homicidal plan. By 10 April 2013, Monis had abandoned any attempt to utilise bikies to murder Helen Lee. Apart from the fact that his approaches were not taken seriously by members of the Rebels OMCG, Monis was in no position financially to pay a hired killer (see [646]-[655]).
On 13 April 2013, Monis met with friends from Iran whom he had not seen for some years and made arrangements for a family outing to take place with them on Sunday, 21 April 2013 (see [246]-[253]). Monis' two sons were to undertake an access visit with him on that day. Monis deceived his friends by indicating that he was not in a relationship with anyone.
The access visit on 21 April 2013 would be the first time in months when such a visit took place without the Offender being present. This was a strong indicator that, by 13 April 2013, the Offender was an integral part of Monis' homicidal plan.
It was an essential part of Monis' plan that he be nowhere near the scene of the murder. His elaborate and highly contrived alibi for the afternoon of 21 April 2013 was outlined in the reasons for verdict (at [246]-[284]). Not only did Monis film events on the outing to prove he was nowhere near Werrington, he staged a minor collision outside the Penrith Police Station and insisted that he be taken to hospital although he had suffered no genuine injury. His alibi was so contrived that it was highly incriminating of Monis in itself ([356]).
[2]
The Murder on 21 April 2013
During the day on 21 April 2013, the Offender travelled to the Werrington address and entered the external security door by use of a key which had been provided by Monis. She waited in Monis' apartment, having entered using another key provided by Monis. The Offender was armed with a knife and a container of petrol.
Soon after 4.20 pm, Helen Lee and Mr Goundar parked in Albert Street next to the apartment block. Helen Lee entered the gate and Mr Goundar waited in the car. The Offender well knew that Helen Lee would park her car in Albert Street when she attended the Werrington apartment block in connection with access visits.
Helen Lee pushed the intercom at the security door and was buzzed into the building by the Offender. She entered the stairwell and walked up towards the third (and top) level of the building where Monis' unit was located. As she climbed the stairs between the second and the third levels, she was attacked by the Offender who stabbed her repeatedly to her back, chest and arms inflicting 18 wounds, before dousing her with petrol and setting her alight. The Offender was wearing a hijab which covered her head but not her face. The terrifying circumstances of the murder were recounted in the evidence of Wayne Morris, the occupant of the adjoining unit, referred to in the reasons for verdict (at [364]-[380]).
Although the medical evidence indicates that Helen Lee was dead before the Offender set her alight, it is not at all clear that the Offender would have been aware of this. The crime involved a frenzied knife attack which continued in spite of Helen Lee's plea for mercy.
The Offender ignored Mr Morris' plea to not set alight to the victim and thus start a fire at a location in the building which placed other persons at risk. The Offender well knew that other persons would be endangered by a fire from her interaction with Mr Morris, it being inevitable that other persons would be in the apartment block on a Sunday afternoon.
The Offender then fled down the stairs taking with her the knife and petrol container. She passed by two occupants of a second-floor unit, Peta Drzewiecki and Jonathon Truupold. By the time she passed through the external security door and was observed by Mathew Hill, she had removed her head covering.
The Offender fled via the stairs leading to Parkes Avenue, the opposite side of the building from Albert Street. I am satisfied that the Offender took this route as she was aware that Helen Lee usually parked her vehicle in Albert Street, and that there was a prospect that Mr Goundar may be in the vehicle at that location at the time of her flight from the building.
In summary, the Offender became a critical player in Monis' plan to murder Helen Lee no later than 13 April 2013. She had agreed to commit the crime at the Werrington apartment block on 21 April 2013 by means of a knife and the use of fire. There was ample opportunity for the Offender to withdraw from the plan in the days preceding 21 April 2013. Although Monis had devised the plan, he placed himself intentionally at a location distant from the murder, so that it fell to the Offender to make her way to Werrington and commit the crime before fleeing the scene. There was ample opportunity for the Offender, on the day of the murder, to withdraw from the planned attack, but she did not do so.
[3]
Some Events Between April and November 2013
Following the murder, the Offender and Monis acted in ways which confirmed the plan to remove Helen Lee from the picture so as to permit the creation of a family unit involving Monis, the Offender and the three children. This was manifest in the activities on the day after the murder, when apparently mundane family activities took place and were filmed by Monis at the Offender's Croydon unit at a time when the boys did not know that their mother was dead (see [307]-[311]).
In the months following the murder, Monis and the Offender made false allegations against Helen Lee's father to the effect that he had killed his daughter. I am satisfied that these actions were taken by the real criminals (Monis and the Offender) and were intended to deflect the police investigation of the murder (see [325]-[337]).
[4]
Arrest and Charging of the Offender
On 15 November 2013, the Offender and Monis were arrested and charged with offences related to the murder of Helen Lee (see [338]).
The Offender remained in custody until her release on bail on 16 December 2013. Monis was also released on bail.
The Offender remained at large on bail until 22 December 2014, when her bail was revoked. She has remained in custody since that date.
[5]
Later Events Revealing Aspects of the Relationship Between the Offender and Monis
I have referred earlier to features of the evidence which shed light on the relationship between the Offender and Monis. I should refer to further events which occurred after the murder.
On 20 February 2014, the Offender video recorded her mother making a grovelling apology to Monis, in circumstances explained in the reasons for verdict (at [340]-[346]). That the Offender was prepared to assist Monis in this way, to the detriment of her own sick mother, says something about the dynamics of her relationship with Monis and her preparedness to act at his behest.
By 22 April 2014, Monis was in custody again as a result of being charged with sexual assault offences. The Offender wrote to Monis in prison in terms which demonstrate the depth of her feelings for Monis. In addition, the letter illustrated the Offender's continuing adherence to religious beliefs which she had adopted as a result of her association with Monis. In the reasons for verdict, I said at [349]-[350]:
"349 The Accused states [in the letter] that she and her daughter (who had also converted to Islam) 'are still practising the last few verses of Ayat ul Kursi, as we still haven't learnt it completely'. She states that she had 'downloaded Mafatih in English, so [she] will start to read this'. In the course of the letter, the Accused states:
'Habibi, I love you very, very, much and I miss you so much I wish you were here with us at home. I am crying as I write this. I am praying for you Habibi, and I am asking Allah to bring you home soon.'
350 The letter concludes with similar terms of endearment:
'I love you very, very, very much and I miss you very, very, very much and I can't wait to see you'."
A further event of significance occurred on 31 July 2014. In the reasons for verdict, I said at [351]-[352]:
"351 On 31 July 2014, a number of photographs of Monis were taken using the Accused's mobile telephone. Monis is wearing a headband containing Arabic script which stated 'We are your soldiers Mohammed, may Allah honour him and grant him peace'. The photographs were taken whilst Monis was sitting in the Wiley Park premises occupied by Monis, the Accused and the Accused's daughter (T645).
352 I am satisfied that the Accused took these photographs whilst Monis posed for them. Apart from evidencing the continuing relationship between Monis and the Accused at that time, the photographs point more importantly to the preparedness of the Accused to assist Monis in a measure which involved the display of extremist religious content."
I will return to these aspects when considering evidence tendered by the defence at the sentencing hearing, which was said to further illuminate the relationship between the Offender and Monis.
[6]
Objective Gravity of the Offence
A number of features bear upon the objective gravity of the offence.
The Offender intended to kill Helen Lee. It was the desire of both the Offender and Monis to remove Helen Lee permanently from the picture. A savage and sustained knife attack starkly reveals the intention of the Offender, followed up by the use of fire which would obliterate any possible chance of survival.
The Offender used a large knife to kill the victim with the use of the weapon being an aggravating feature of the crime.
This was a brutal and callous attack upon a defenceless woman. The Offender continued to stab Helen Lee after she was on the ground, making an attempt to defend herself by raising her hand. Even when confronted by Mr Morris, the Offender proceeded with her plan to set fire to the victim, ordering Mr Morris to return to his unit. Despite the frenzied and sustained nature of the attack, the Offender disclosed a measure of composure by departing the building with the implements used in the crime.
The Offender knew that the killing of Helen Lee would deprive two young boys of their mother and Helen Lee's parents of their only child. The degree of harm which the Offender knew would be caused by the offence is relevant to her culpability and the Offender knew that Helen Lee's death would deprive two children of their mother and two parents of their daughter in a manner which constituted serious harm flowing from the offence: R v Lewis [2001] NSWCCA 448 at [67].
It is the medical evidence that Helen Lee was dead by the time that her body was set alight by the Offender. The Offender may or may not have been aware of this at the time, but the use of fire clearly ensured that there was no prospect of survival. The setting alight to the body was a gratuitous act of defilement on the part of the Offender. This act forms part of the circumstances of the offence so as to be capable of bearing upon the objective gravity of the crime: Knight v R [2006] NSWCCA 292; 164 A Crim 126 at 141 [28]-[29]; R v Wilkinson (No. 5) [2009] NSWSC 432 at [61].
Although the Offender was not separately charged with an arson offence, it was common ground that the Court could have regard, in considering the objective gravity of the offence, to the danger to others resulting from setting fire to the victim in an apartment block. The Offender started a fire, on a Sunday afternoon, in the stairwell of a three-storey apartment block, knowing that at least one person (Mr Morris) was on the third storey, with other persons also likely to be in the building. There was actual danger to the occupants of the building with the terrifying consequences of the use of fire being starkly demonstrated by the reaction of Mr Morris, who understandably feared the spread of fire following the murder he had just witnessed. This aspect of the offence involved a total disregard for public safety and is an aggravating factor under s.21A(2)(i) Crimes (Sentencing Procedure) Act 1999.
The account of Mr Morris provides some insight into the terrifying and horrific acts of the Offender. It may be concluded readily that Mr Morris was traumatised as he witnessed these shocking events.
There was a significant degree of planning in advance of the murder of Helen Lee. Although Monis' planning may be traced back to early 2013 (if not earlier), the involvement of the Offender in planning the murder can be dated from a period between 10 and 13 April 2013, when it was clearly determined that the murder would take place in the Werrington apartment block on 21 April 2013, with the Offender acting as the killer and with Monis being distant from the scene. The Offender was provided with keys to the Werrington premises by Monis and attended those premises on 21 April 2013 armed with a knife and a container of petrol. I have made findings concerning the means of death utilised by the Offender and her departure from the building by the Parkes Avenue exit, which led away from the Albert Street entrance where the Offender knew that Helen Lee and Mr Goundar would usually park.
The motive for the murder included the desire of the Offender and Monis to secure a clear pathway to the custody of Monis' two sons. The Offender wished to effectively substitute herself for the murdered mother of the two boys. The Offender's associated motive was her desire to cement her relationship with Monis with a single family unit being created for this purpose. The Offender was enthralled by Monis and was prepared (once again) to act at his behest (see [759]-[763]).
The Offender had demonstrated a strong desire to associate with Monis even in extreme and criminal activities which appealed to him, and which she was prepared to adopt despite the fact that they were completely foreign to her own background and upbringing. The Offender's close association with Monis in 2008 and 2009 persisted with greater intensity in the period from mid-2012 onwards and maintained itself after the murder in April 2013 and into 2014.
The offence constituted a flagrant attempt to circumvent the custody order of the Federal Magistrates Court. The murder of Helen Lee constituted a form of extra-curial criminal measure whereby Monis and the Offender sought to obtain custody of the children. Courts have recognised that this is a relevant factor substantially elevating the objective gravity of the offence: R v Potier [2004] NSWCCA 136 at [79]-[82]; Efthimiadis v R (No. 2) [2016] NSWCCA 9 at [86].
[7]
Other Aggravating Factors
The Offender's actions after the murder, involving the taking of steps intended to deflect the police investigation away from her and Monis, are also relevant on sentence. These steps included advancing false allegations against the father of the victim. Conduct of this type cannot be taken into account in an assessment of the objective gravity of the murder itself. However, post-offence conduct of this type may bear upon the Offender's lack of remorse and contrition and her prospects of rehabilitation: R v Wilkinson (No. 5) at [62]. These aspects do not assist the Offender on the question of sentence.
At the time of the murder, the Offender was subject to conditional liberty in the form of bail for the Commonwealth offences of aiding Monis to use a postal service to menace and harass contrary to the Criminal Code 1995 (Cth). This is an aggravating feature as the murder was committed at a time when the Offender was subject to a court order requiring good behaviour on her part and the offence constituted a grave breach of her conditional liberty: Currie v R [2013] NSWCCA 267 at [79]; s.21A(2)(j) Crimes (Sentencing Procedure) Act 1999. Not only was the Offender on bail at the time of the murder, but she had appeared in the District Court as recently as 5 April 2013 for the fixing of a trial date for the Commonwealth charges against her and Monis (Sentencing Exhibit A).
[8]
The Offender's Criminal History
The Offender has a criminal record limited to the 2008 Commonwealth offence which she committed in conjunction with Monis.
On 6 September 2013, his Honour Judge Marien SC sentenced the Offender for one count of aiding and abetting Monis in the use of the postal service for an offensive purpose. The Offender was placed on a recognisance to be of good behaviour for two years under s.20 Crimes Act 1914 (Cth). Her offence related to conduct towards the family of a deceased Australian soldier, Lance Corporal Jason Marks.
In the reasons for verdict, I described the Offender's conduct concerning the family of Lance Corporal Marks at [122]-[124]:
"122 On or about 6 May 2008, a further letter from Monis was posted to Cassandra Marks. A copy of this letter was posted on the Sheikh Haron website.
123 In the above letters from Monis to the family of the late Lance Corporal Marks, it was suggested variously that:
(a) he had died for nothing;
(b) he was analogous to a Nazi soldier following the orders of Hitler; and
(c) Australians could not be proud of him.
124 On or about 6 May 2008, the Accused, as Sister Amirah, participated in a video filmed by Monis (fourth video, Exhibits BB, BC and BE). The Accused was wearing a black niqab. In that video, the Accused referred to the 4 May 2008 letter that Sheikh Haron had sent to Cassandra Marks. She then delivered what she described as her own message to Cassandra Marks, which echoed the sentiments expressed in Sheikh Haron's letter. The Accused, variously, compared Lance Corporal Marks to a Nazi soldier under Hitler, said that she did not feel sorry for him and described him as a murderer. The Accused's video message to Cassandra Marks was placed on a DVD that was posted to Cassandra Marks. The video was also posted on YouTube and an announcement relating to the video was made on the Sheikh Haron website."
[9]
The Offender's Subjective Circumstances
The Offender did not give evidence at the trial nor at the sentencing hearing.
The Offender's daughter gave evidence at the trial and an affidavit of the daughter sworn on 28 November 2016 was tendered on sentence (Sentencing Exhibit 3). I will return to this affidavit later in this judgment. In addition, the Offender's brother gave evidence at the trial (T341-411) as did her cousin, Sue Droudis (T294-320). The evidence of these family members provided some brief personal history of the Offender.
No psychiatric or psychological report was tendered on sentence.
The defence tendered a letter dated 19 November 2016 from Margaret Wiseman, Chaplain at Silverwater Women's Correctional Centre (Sentencing Exhibit 1). Ms Wiseman has known the Offender in the period in which she has been detained at Silverwater. Ms Wiseman states that the Offender "has been exemplary in her attitude to me as Chaplain, to Staff and to other inmates appearing to accept those different to her". The Offender is "very pleasant in her language and dress and works hard, also attending art classes". The Offender is "committed to her Muslim faith and faithful and reverent in her prayer times". Ms Wiseman has arranged for the accredited Muslim Chaplain to visit the Offender and support her.
It was common ground that there was no evidence of contrition or remorse on the part of the Offender.
[10]
The Role of Monis and Issues Concerning Prospects of Rehabilitation, Specific Deterrence and Future Dangerousness
Submissions were made concerning the role of Monis and the relevance of the Offender's relationship with Monis to sentence. Monis, of course, is dead arising from his acts at the Lindt Café on 15-16 December 2014.
As mentioned earlier (at [10]), there is nothing in the evidence to indicate that the Offender would have become involved in crime before her association with Monis commenced. It is clear that the Offender was deeply affected by Monis in both her thought processes and her actions. At all times, however, the Offender was a mature adult and there is no evidence of any psychiatric or psychological impediment to her capacity to exercise free will in choosing her associations with persons, let alone the acts which she would commit.
The evidence suggests that Monis had a persuasive power with respect to women which, at this distance and from the Court's perspective, is difficult to understand. A number of women became involved with him and he used them for his own purposes at different points in his life.
I accept that Monis was able to exercise a significant degree of influence with respect to the Offender and that this played a part in her preparedness to act criminally with him, whether in the extreme ways depicted in 2008 and 2009 or in the murderous fashion involved on 21 April 2013.
There is evidence that Monis exercised a measure of control in his relationship with the Offender in the course of their highly unusual and longstanding relationship. I noted, in the reasons for verdict, that the Offender had demonstrated a "preparedness to act, in a variety of extraordinary ways, at his request" (at [625]). This evidence provides some support for a conclusion that there were controlling features of Monis' relationship with the Offender extending beyond mere persuasive powers.
At the same time, findings were made in the reasons for verdict that the Offender was not naïve in her dealings with Monis over a number of years (see [577]-776]). The Offender was a mature woman of sound mind. She was not young and impressionable.
Over objection from the Crown, I admitted into evidence on sentence an affidavit of the Offender's daughter (Sentencing Exhibit 3): R v Droudis (No. 15) [2016] NSWSC 1782. In that affidavit, the Offender's daughter (now 16 years old) stated that Monis had been physically and emotionally abusive towards the Offender from about 2006 until his death in December 2014. Examples were given of Monis' violent and controlling conduct.
The Crown did not wish to cross-examine the Offender's daughter upon this affidavit. The Court should proceed upon the basis that this evidence has not been put in issue by the Crown: O'Neil-Shaw v R [2010] NSWCCA 42 at [27], [50]-[51]; Heath v R [2016] NSWCCA 24 at [40]-[44].
There is some support in other evidence for a measure of violence in the relationship between Monis and the Offender. A neighbour of Monis and the Offender in Croydon told police that she heard arguments taking place between her neighbours (Monis and the Offender) "on average twice a week" (Sentencing Exhibit 4).
The Crown tendered a statement of Detective Senior Constable Staples (Sentencing Exhibit F) which summarised what police had detected from surveillance devices in place at the premises of the Offender and Monis between May and November 2013. Monis was heard lecturing the Offender and her daughter on religious matters. There were arguments between Monis and the Offender over domestic issues. It was evident that Monis' views and wishes took precedence in the household. There was one incident only of physical violence being overheard, with the Offender screaming, accompanied by a sound consistent with Monis striking the Offender.
There is no evidence that the Offender ever reported to the authorities any acts of domestic violence on the part of Monis.
In considering the recent affidavit of the Offender's daughter, I have kept in mind, as well, the daughter's evidence at the trial that Monis was her stepfather, that she saw him in a fatherly role and that it appeared to her that Monis and the Offender had formed a close family unit (see [539]).
The Offender bears the onus of proof, on the balance of probabilities, with respect to any suggested mitigation flowing from this aspect of the evidence. I am prepared to find that there was a level of abuse in the relationship between Monis and the Offender, so that his psychological persuasion of the Offender was fortified by a level of physical abuse.
The difficulty for the Offender, however, lies at the next step, namely determining the role of this evidence on sentence and its relevance to the offence of murder. Mr Ierace SC submitted that this evidence went only to issues of personal deterrence, future dangerousness and the Offender's prospects of rehabilitation.
Senior Counsel for the Offender did not submit that this evidence operated to ameliorate the Offender's culpability for the murder (T12-13, 30 November 2016), nor did he contend that it gave rise to a form of non-exculpatory duress which may bear upon sentence (T8, 30 November 2016). The Crown submitted, in any event, that there was no evidence from the Offender which could support such conclusions. I record my view that no such finding should be made in the Offender's favour which may serve to reduce her moral culpability.
Senior Counsel for the Offender submitted that, in effect, the "spell was broken" as a result of the death of Monis and the Offender learning of the extent of Monis' duplicity with other women and his deceit of the Offender (T12-13, 30 November 2016). He submitted that the Offender was "less likely to remain a disciple [of Monis] if indeed she still is" (T13, 30 November 2016). Senior Counsel submitted that the Offender had "every reason to reject everything he [Monis] stood for and, in so doing, return to a law-abiding life" (T10, 30 November 2016). It was submitted that the Offender is well placed to reject any residual influence of Monis on her behaviour in view of the fact that he repeatedly assaulted and betrayed her. It was argued for the Offender that these aspects provided a reasonable basis to find that the Offender's prospects for rehabilitation are very promising.
The Crown pointed to the absence of evidence from the Offender herself on these matters and argued that no positive finding should be made in her favour on aspects of prospects of rehabilitation, future dangerousness and personal deterrence.
As to the defence submission concerning the Offender having learned of Monis' duplicity with other women, Mr Ierace SC conceded that there was no evidence that the Offender was ignorant of these matters before Monis died (T28, 30 November 2016). Further, I have found that the Offender was the only woman with whom Monis had a relationship from mid-2012.
In the absence of evidence from the Offender, I have difficulty making a finding in favour of the Offender that any measure of physical abuse provides real assistance to her on sentence. On the face of it, the Offender herself stood to gain from this crime (see [65] above). She persisted in her apparently loving support of Monis after the murder (see, for example, [53] above).
Further, the Offender is not assisted in any real way by the death of Monis. In the absence of any evidence from the Offender, it is difficult to conclude in her favour that her preparedness to murder only arose in the context of her life with Monis and that there is no prospect in the future that she may act in this way again. A sentencing court is entitled to take into account the circumstances of the offence itself (a savage murder) in determining the question of future dangerousness: Ng v R [2011] NSWCCA 227; 214 A Crim R 191 at 207-208 [64]. The fact that a person has acted in such a way in the past is pertinent to an assessment of risk that the person may act in that way again in the future.
In assessing the risk of re-offending, it is necessary to keep in mind that it is the "risk" and not the certainty of re-offending which is under consideration, especially when the Offender is likely to receive a lengthy sentence of imprisonment so that early release to the community is not open: Beldon v R [2012] NSWCCA 194 at [51]-[53].
On one view of the matter, it is difficult to understand why the Offender maintains her adherence to the Islamic faith, if she has left the influences of Monis behind her. Not only did Monis convert her to Islam, but he engaged her in his vile and extreme propaganda under the guise of Islamic activism. I have referred to conduct of the Offender in 2014 which indicated her continuing support and love for Monis (see [53] above). It might be thought that the Offender's experience with her Muslim faith was something of a poisoned chalice, associated as it is with criminality in conjunction with Monis.
Having considered all evidence bearing on the topic, however, I accept that the Offender's prospects of rehabilitation are fair. It is apparent, from the letter of Ms Wiseman, that the Offender is a compliant prisoner who is making use of her time in custody for productive purposes. However, hanging over this assessment is the enormity of her crime and the absence of evidence from the Offender to provide an objective foundation for a conclusion that she has modified (or is prepared to modify) her beliefs so that there is no prospect of repetition of the serious criminal conduct which has brought her before the Court.
A similar conclusion should be reached with respect to future dangerousness and specific deterrence. The Court would require solid objective evidence to support findings as sought by the Offender against the background of her commission of this terrible murder for reasons which served to benefit both Monis and herself.
[11]
General Deterrence
General deterrence plays an important part on sentence for this offence.
There is, of course, a need to deter persons from unlawfully taking a human life.
In addition, there is a need to deter other persons from seeking to circumvent orders made in family law proceedings and a need to deter people from using fire in public areas as an instrument of crime.
[12]
Victim Impact Statement
A victim impact statement was read at the sentencing hearing on behalf of the parents of Helen Lee (Sentencing Exhibit E). The statement made clear the devastating effects upon the parents of the victim arising from the loss of their daughter, together with the impact upon Helen Lee's two sons flowing from the death of their mother.
The Crown made application under s.28(4) Crimes (Sentencing Procedure) Act 1999 that the Court take into consideration on sentence the contents of the victim impact statement with respect to the parents and the children of the victim. The Crown submitted that this material could be taken into account in connection with the determination of the punishment for the offence of murder, on the basis that the harmful impact of the death of Helen Lee on the members of her immediate family constitutes an aspect of harm done to the community.
I am satisfied that the contents of the victim impact statement should be taken into account for the purpose of recognising the harm done to victims of the crime and the community: s.3A(g) Crimes (Sentencing Procedure) Act 1999. I note that the loss of the mother of the two boys, and of a daughter to her parents, are powerful factors which have already been taken into account in considering the objective gravity of the crime (see [60] above). That use of this evidence covers the field in this respect.
It is important that the Court acknowledge, once again, the harm done to the members of Helen Lee's family as a result of this crime. That harm and loss will continue indefinitely. I am sure that the family will never forget Helen Lee and her many attributes as a good daughter and mother. The Court expresses the condolences of the community and the Court to the family for their great loss.
It was submitted for the Offender that the Court should extend a discount on sentence arising from the facilitation of the administration of justice in the conduct of the defence both before and during the trial: s.22A Crimes (Sentencing Procedure) Act 1999.
I referred in the reasons for verdict (at [13]-[16]) to the highly efficient way in which the trial was conducted by the parties. I accept, as well, that there was appropriate pretrial co-operation and assistance on behalf of the Offender.
I acknowledge the Crown submission that a substantial part of the Offender's co-operation flowed from the defence acceptance of the Crown case against Monis. However, the measure of defence co-operation during the trial extended to areas involving the Offender and not just Monis.
Section 22A is not intended to simply reward the defence where it has complied with a mandated disclosure requirement. However, co-operation encompassed by the section extends to admissions, disclosures made before or during the trial and limiting the facts in issue in the trial thereby reducing the number of witnesses to be called. All of these things occurred in this case. I am satisfied that the Offender took steps to facilitate the administration of justice in this case.
The Offender is entitled to credit under s.22A in the circumstances of this case. This aspect will be taken into account on sentence as a factor favouring the Offender.
[14]
Should a Life Sentence be Imposed?
Submissions
The Crown submitted that the level of the Offender's culpability in this case is, if not the worst case, then close to the worst case so that the community interest in retribution, punishment, community protection and deterrence warranted, if not a life sentence, then a very substantial specified term.
The Crown emphasised the factors bearing upon the objective gravity of the crime and the limited evidence (with no evidence from the Offender) on subjective matters and the topics of future dangerousness, prospects of rehabilitation and specific deterrence.
Senior Counsel for the Offender submitted that the Court should not impose a life sentence in this case having regard to the fact that the Offender was not the orchestrator of the crime, her minor criminal antecedents, her age and life expectancy and her real prospects of rehabilitation and concordant relevance to future dangerousness and specific deterrence.
The Court was taken by Senior Counsel for the Offender to a number of sentencing decisions where substantial determinate sentences were passed for grave crimes of murder.
It was submitted that the Offender's level of culpability in the commission of the offence is not so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through imposition of a life sentence. It was submitted, as well, that the interests of justice would not best be served by a determinative sentence that falls little short of a life sentence.
It was submitted for the Offender that a salutary, but not crushing, determinate sentence should be imposed in this case.
Decision
It is for the Crown to prove beyond reasonable doubt that this is a case which attracts imposition of a sentence of imprisonment for life in accordance with the statutory criteria in s.61(1) Crimes (Sentencing Procedure) Act 1999.
It has been said that the primary focus of s.61(1) is directed towards how extreme an offender's culpability is, with the need for the Court to find features of very great heinousness, along with the absence of any facts mitigating the seriousness of the crime: R v Merritt at 570 [52]. The principles to be applied when s.61(1) is under consideration were set out in Knight v R at 139-140 [23]. I have kept these principles in mind.
It has been said that it is the combined effect of the four indicia in s.61(1) which is critical, and that the absence of any one or more of the indicia of retribution, punishment, community protection and deterrence may operate to make it more difficult for a sentencing Judge to reach the conclusion that a life sentence is required, although it will not be determinative: Knight v R at 139-140 [23].
I referred earlier in this judgment (at [56]-[69]) to factors relating to the objective gravity of the crime and other aggravating features. I am satisfied that the Offender's crime of murder involves a very high level of culpability in this case. The High Court of Australia has said that sentencing courts should avoid the use of a term such as 'worst category", unless the offence in question is so grave so as to warrant the imposition of the maximum penalty for the offence: The Queen v Kilic [2016] HCA 48; 91 ALJR 131 at 137 [18]-[20].
I have given careful consideration to the question of whether a life sentence should be imposed in this case, applying the principles referred to in R v Merritt and Knight v R. This was a terrible crime committed by a 33-year old Offender who had something to gain for herself from the crime. At the same time, the offence arose in the context of the sustained and unusual relationship that the Offender had with Monis which involved aspects of controlling behaviour on his behalf.
The Offender had no criminal history except for an offence committed by her in conjunction with Monis.
It is clear that there is a substantial community interest in retribution, punishment, community protection and deterrence arising with respect to the sentencing of the Offender. The question is whether the requirements of s.61(1) have been established - that these purposes can only be met by imposition of a life sentence.
I have kept in mind the age of the Offender - 33 years at the time of the offence and now 37 years. According to a life expectancy table in evidence (Sentencing Exhibit 2), the Offender has a life expectancy of about 48 years from now.
It is appropriate, at this point, to return to the role of Monis and its relevance to sentencing of the Offender. Monis is dead and cannot face justice for his own large part in the murder of his former wife. I have declined in this judgment to make certain findings as sought by the defence with respect to Monis and the consequences for the Offender flowing from his death. At the same time, I have made findings concerning Monis and his personality, the nature of the relationship between Monis and the Offender and her preparedness to act in extraordinary ways on his behalf at different times. Monis did exercise a significant measure of influence over the Offender. Monis was the planner and orchestrator of the murder which the Offender carried out. An understanding of the unusual relationship between the two people provides a broader context for the crime, which operates in the Offender's favour on the question whether a life sentence should be imposed.
Having considered submissions made by the parties with respect to s.61(1), I am not satisfied beyond reasonable doubt that the requirements of the section have been met so as to warrant a life sentence of imprisonment. However, the circumstances of the case are such that the Court's sentencing response must involve a very lengthy determinate sentence.
This is a crime of murder which lies very significantly above the mid-range of objective seriousness, for the purpose of considering the relevance of the standard non-parole period of 20 years to the instinctive synthesis process to be undertaken by the Court on sentence.
I have kept in mind the submission for the Offender that a salutary, but not crushing sentence was appropriate in this case. Courts are familiar with descriptions of sentences as "crushing", but that does not articulate some applicable test: Ta'ala v R [2008] NSWCCA 132 at [42]. An assessment whether a particular sentence is a "crushing sentence" must have regard to the objective gravity of the offence and all other matters relevant to the imposition of sentence in the particular case: Paxton v R [2011] NSWCCA 242; 219 A Crim R 104 at 132 [215].
In light of the very substantial objective gravity of the offence and taking into account the Offender's subjective circumstances and other factors relevant to sentence (which I have mentioned in this judgment), I am satisfied that the Offender should be sentenced to a term of imprisonment of 44 years.
Given the length of the head sentence, a finding of special circumstances should not be made so as to alter the statutory ratio of 75% under s.44 Crimes (Sentencing Procedure) Act 1999. I am satisfied that the parole period component to be incorporated in the sentence to be passed will provide ample opportunity, by way of conditional liberty, in the event that the Offender is released to parole at the conclusion of the non-parole period to be fixed.
I am satisfied that a non-parole period of 33 years represents the minimum period which justice requires that the Offender should serve in custody: Muldrock v The Queen [2011] HCA 39; 244 CLR 120 at 139-140 [57].
It was common ground that any sentence should commence on 22 December 2014 having regard to the Offender's presentence custody. I have taken into account the earlier period of custody of one month in determining sentence.
As the Offender is convicted of a "serious violence offence", it is a requirement that she be warned of the existence of the Crimes (High Risk Offenders) Act 2006. I ask the Offender's solicitor to undertake this task on the Court's behalf.
Would the Offender please stand.
For the crime of murder, I sentence you to imprisonment for a term of 44 years, comprising a non-parole period of 33 years commencing on 22 December 2014 and expiring on 21 December 2047 with a balance of term of 11 years commencing on 22 December 2047 and expiring on 21 December 2058.
The earliest date upon which you will be eligible for release on parole is 22 December 2047.
[15]
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Decision last updated: 01 February 2017
JOHNSON J: On 21 April 2013, a 30-year old mother was savagely murdered on a stairway of an apartment block at Werrington. The killer was a 33-year old woman who inflicted multiple stab wounds to the victim before dousing her with petrol and setting her alight.
The young woman who was the victim of the crime was the former wife of Man Haron Monis ("Monis") and the mother of their two sons (then aged eight and five years). For reasons explained in R v Droudis (No. 14) [2016] NSWSC 1550 ("reasons for verdict") at [7]-[8] (which related to the protection of the children from identification), I will refer to the victim as Helen Lee (which is not her real name). The killer was the Offender, Amirah Droudis, who was Monis' partner at the time of the murder.
The Offender was convicted of murder following a trial by Judge alone with the verdict and reasons being announced on 3 November 2016: R v Droudis (No. 14).
It is the present task of the Court to sentence the Offender for the crime of murder.
Penalty for Murder
The maximum penalty for the crime of murder is imprisonment for life: s.19A(1) Crimes Act 1900. A person sentenced to imprisonment for life for murder is to serve that sentence for the term of the person's natural life: s.19A(2) Crimes Act 1900. If a life sentence is imposed, the Court cannot fix a non-parole period: R v Harris [2000] NSWCCA 469; 50 NSWLR 409 at 429 [122].
A Court is to impose a sentence of imprisonment for life on a person who is convicted of murder if the Court is satisfied that the level of culpability in the commission of the offence is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met by the imposition of that sentence: s.61(1) Crimes (Sentencing Procedure) Act 1999. The burden of proving that a case falls within s.61(1) rests on the Crown and the standard of proof is beyond reasonable doubt: R v Merritt [2004] NSWCCA 19; 59 NSWLR 557 at 567 [35].
If the Court does not impose a sentence of imprisonment for life, the Court may impose a sentence of imprisonment for a specified term: s.21(1) Crimes (Sentencing Procedure) Act 1999. A standard non-parole period of 20 years applies for the crime of murder: ss.54A-54B Crimes (Sentencing Procedure) Act 1999.
Approach to Fact Finding
The Court may not take facts into account on sentence, in a way that is adverse to the interests of the Offender, unless those facts have been established beyond reasonable doubt. If there are matters which the Offender relies upon in mitigation of penalty, it is for the Offender to prove those matters on the balance of probabilities: The Queen v Olbrich [1999] HCA 54; 199 CLR 270 at 281 [27].