R v Halloun

Judgment 1HER HONOUR: Tony Halloun has been found guilty by a jury of the murder of Mrs Shahnaz Qidwai. He now stands to be sentenced for that offence. The maximum penalty for the offence of murder is imprisonment for life. The offence carries a standard non-parole period of 20 years. Each of those statutory parameters is a factor to be taken into account in determining the appropriate sentence for the offence. 2It is necessary to determine the factual basis upon which the offender must be sentenced. The deceased was the wife of Dr Khalid Qidwai, a medical practitioner with a busy practice at Croydon. Dr Qidwai was the offender's family doctor when the offender was a child. The offender's parents were still patients of the practice at the time of the offence. 3The offender ran a concreting business. The Qidwais lived in a large house by the water in the Sydney suburb of Henley. The house was on a battle axe block with a long driveway. In February 2012, Dr Qidwai retained the offender to concrete the driveway and border it with Besser blocks. The agreed price for labour and materials was $19,000. 4The offender gave evidence that he understood he was to be paid in cash and that he had priced the job accordingly. A number of payments were made in cash but others were paid by credit card. An amount of $2000 was paid in cash at the outset of the contract. The offender understood that was by way of deposit. Dr Qidwai recorded it as being payment for the Besser blocks. 5In March 2012 the offender completed the pouring of the concrete, which was the major part of agreed works. After the concrete was poured, a further $4000 was paid in cash. It was the deceased who handed that cash to the offender. The only amounts Dr Qidwai did not pay in cash were payments for materials ($2000 for steel and $6000 for concrete, both paid by credit card). The offender claims the payments by credit card made the job less profitable. 6After the concrete was poured in late March 2012, no further works were undertaken until June 2012. At that stage, all that remained was for the offender to dig out the sides of the driveway and to supply and install the Besser blocks as small retaining walls on each side of the driveway. The offender had by then received $14,000 in payment and was owed a further $5,000. 7On the morning of 14 June 2012 the offender went to see Dr Qidwai at his surgery at Croydon. The offender and Dr Qidwai gave different versions of that conversation. According to Dr Qidwai, the offender said he did not want to finish the job. He demanded $3,500 as final payment for the works completed up to that point. Dr Qidwai refused that request, insisting that the offender finish the job before receiving further payment. He says the offender was "rough and rude" during that conversation and that he left with a threat, "I am going to win in the end" (T308.42). 8The offender said that he went to the doctor's surgery that day to "discuss the money and to finish off the job." He said it was already arranged that he would continue the job before he visited the doctor. He said they talked "like gentlemen" and that he asked for money to pay for the Besser blocks. Dr Qidwai said he would pay for the Besser blocks himself and they discussed whether he would pay by cheque or credit card. The offender denied that he was speaking aggressively. He denied saying that he would win in the end. 9Dr Qidwai said the offender later rang and apologised, saying he would resume work the following morning. At that point Dr Qidwai repeated his offer to pay for the Besser blocks. In his evidence in the trial, the offender ultimately admitted that he did apologise during that phone call (T1192.3). The fact that he did so supports Dr Qidwai's account that there was an element of confrontation in the earlier conversation outside the surgery. Another patient of Dr Qidwai's who saw the confrontation said that the offender was talking in a loud voice and didn't appear to be happy (T409). I am satisfied that the conversation was as described by Dr Qidwai. 10The offender was under considerable financial pressure at that time. The company through which he had previously operated the concreting business had gone into liquidation and he had recently started trading through a new entity. The new company was openly characterised by his counsel during the trial as a "phoenix" company, that is, one which rises debt-free from the ashes of its insolvent predecessor. It was the offender who adduced that evidence. As noted on his behalf during the trial, the debt of the company in liquidation was not his personal debt but he had no assets or personal savings. He was dependent upon a turnover of cash in the business, or else borrowings from family, to meet the demands of his suppliers and sub-contractors. 11There was clear evidence that, as at the middle of June, the offender was being pressed for payment by people who claimed to be owed money by him (exhibit WWW). I acknowledge, as I directed the jury during the trial, that some of that evidence was admitted for the limited purpose of establishing that demands were being made and that it did not establish that the debts in question were in fact owed, but at least some of the debt was admitted. 12I do not have any doubt that the offender was under substantial financial pressure in his business as at 15 June 2012 and that he had a pressing need for cash. I am also satisfied beyond reasonable doubt that, on the strength of his dealings with Dr Qidwai, the offender felt a sense of entitlement to receive more than Dr Qidwai had paid him up to that point. I am satisfied that he knew or believed, based on the method of previous payments, that there were likely to be large sums of cash in the house at Henley. 13On the morning of 15 June 2012 the offender went to the house, ostensibly to complete the works. He took his offsider, Eddy Lolohea. Dr Qidwai was expecting that the works would be completed that day (T313.27). However, the offender told him that the Besser blocks were not coming that day and that they would just prepare the driveway and be finished by 11.00 or 11.30am (T313). The offender then asked Dr Qidwai for $400. Dr Qidwai agreed to give him only $200, in four $50 notes (T316-317). 14Dr Qidwai left for his surgery at around 9.15am that morning. The only other resident of the house was Dr Qidwai's youngest daughter, Dr Maha Qidwai. She had also left for work by that time. After Dr Khalid Qidwai left, Mrs Qidwai was alone in the house. 15Mrs Qidwai had a practice of keeping cash takings from Dr Qidwai's surgery in the family home. There was a large amount of cash in the house on the day she was killed. Dr Qidwai gave evidence that he had seen something in the order of $5,000 to $10,000 in re-used envelopes on a table near the kitchen the previous night. 16The offender had some knowledge of the fact that cash was kept at the house. He had on two previous occasions been paid large amounts of cash retrieved from the house in his presence (an amount of $2,000 handed to him by Dr Qidwai and an amount of $4,000 handed to him by Mrs Qidwai). On the morning of the offence, he had asked for money and again seen it retrieved from the house. 17At some time after 9.45am the offender went to a side door of the house and asked Mrs Qidwai if he could use the toilet (T319), telling her that he was unwell. Mrs Qidwai did not like letting workers into the house. She tried to call her husband a number of times. She eventually spoke to him at 10.31am, saying that the offender had a bad cramp in his stomach and that he had come to the kitchen door doubled up with pain. She said to Dr Qidwai "I had to let him go to the toilet" (T319.38). 18The offender later asked to use the toilet a second time. Mrs Qidwai let him in again (T320). The Crown case was that the offender was not ill and that he feigned symptoms as a pretext for getting into the house. There is some evidence which casts doubt on the offender's claim that he was in fact ill. In particular, he claims that he had been feeling unwell from the time when he collected Eddy Lolohea. However, on the way to the house at Henley he bought a sausage roll and a Red Bull for breakfast. After the second time he used the toilet, the toilet seat was up (suggesting, contrary to his evidence, that he did not sit on the toilet). Further, during the time when he was at the police station following his arrest later that day, he made no complaint of illness to the custody officer. 19However, there is also some evidence to support his account that he was ill. Eddy Lolohea, who had worked with the offender for a number of years, gave evidence that he looked very unwell. Mr Lolohea impressed as a frank and careful witness. Whilst I suspect the illness may have been a confabulation, or was at least not so bad as to require the immediate use of a toilet, I do not think I can be satisfied beyond reasonable doubt of those matters. 20In accordance with the jury's verdict, the offender must have killed Mrs Qidwai while he was in the house the second time. She spoke to Dr Qidwai at 10.45am, saying "Tony has a really bad cramp in his stomach and he's sitting in the toilet now". A neighbour heard a scream at around 11am (T643.33). At 11.14am Mrs Qidwai's daughter-in-law called her mobile phone and there was no answer (T222; Exhibit SSS). 21Eddy Lolohea said that the accused told him to pack up at 11.28am. The evidence established that they left the property at about 11.31am. At 12.03, the offender called Dr Qidwai and said "I have finished for the day and I'm gone". 22The prosecution case was left to the jury in two ways. First, it was put that the offender was guilty of murder on the direct basis in that he killed Mrs Qidwai by a deliberate act committed either with the intention to kill her or with the intention to inflict grievous bodily harm upon her. Alternatively, the Crown contended that the offender was guilty of murder on the constructive basis (sometimes referred to as felony murder). On the alternative case, the Crown alleged that the act occasioning death occurred during or immediately after the commission of the offence of aggravated robbery. It is accordingly necessary to make a determination as to the basis on which the offender is to be sentenced. 23I have determined that the offender must be sentenced on the basis of direct murder. He cannot be sentenced on the basis of constructive murder unless it is established beyond reasonable doubt that he committed the offence of aggravated robbery. That is an offence which involves an element of personal confrontation. The offender could only be guilty of that offence if he demanded money from Mrs Qidwai with a threat of violence or stole it from her person, such as by snatching money out of her hand. I am not satisfied beyond reasonable doubt that that is what occurred. As noted on behalf of the offender there is, essentially, no evidence as to the events which took place inside the house. It is reasonably possible that, rather than robbing Mrs Qidwai directly, the offender was in the process of going through the envelopes on the table, endeavouring to do so secretly, when he was discovered by Mrs Qidwai. That would not amount to robbery and would not be enough to sustain the case of constructive murder. 24As to murder on the direct basis, it is necessary to determine whether the act causing death was committed with the intention of killing Mrs Qidwai or only with the intention of inflicting grievous bodily harm. The Crown case was left to the jury on each basis, in the alternative. Since there is no eye-witness account of what happened inside the house, the offender's state of mind can only be ascertained by inference based on the surrounding circumstances and the injuries inflicted upon Mrs Qidwai. The injuries were undoubtedly serious. Significantly, Mrs Qidwai had bruising around both eyes and in and around the mouth. She had a large abrasion on the back of the head associated with heavy bleeding underneath, but it is difficult to know how that might have been caused - it could have been associated with a fall. She had bruising to the neck and torso and to the arms and legs. She also had a number of fractured ribs. A number of the injuries were relatively superficial, perhaps suggestive of a struggle. 25The direct cause of death was blunt force injuries of the head and chest and "possible asphyxia". However, the forensic pathologist explained a number of possibilities relating to asphyxia. One is that the deceased was deliberately deprived of air by an act of the offender but it is also possible that the indications of asphyxia were due to secondary causes. In the face of that evidence, I cannot be satisfied beyond reasonable doubt that the offender tried to stop Mrs Qidwai from breathing by any deliberate act. 26The inference to be drawn from Mrs Qidwai's injuries (as to the state of mind with which they were inflicted) must also be informed by a consideration of all of the surrounding circumstances. The offender had, until the day of the murder, led a good life. He had no prior convictions. By all accounts he was a gentle family man, with no history of violence. He had provided well for his family but, with the failure of his business, his finances were spiralling out of control. By the date of the offence, he had an acute need for cash and a sense of grievance as to his financial dealings with Dr Qidwai. In that state of mind, I am satisfied that the offender formed an intention to steal from the house but I doubt he intended to kill Mrs Qidwai. 27I am satisfied beyond reasonable doubt that the offender went through the envelopes kept by Mrs Qidwai looking for cash to steal. Apart from the combination of circumstances pointing strongly to that conclusion, the offender admitted to Eddy Lolohea that he had gone through the mail. 28I am satisfied that what probably occurred is that Mrs Qidwai discovered the offender doing something wrong inside the house and that he then attacked her out of panic. I doubt whether he planned or foresaw doing so. There is one aspect of the Crown case which suggests a planned attack of some kind. The injuries suffered by Mrs Qidwai included pattern injuries which the forensic pathologist thought were consistent with the repeated use of a device such as a taser. That is consistent with a degree of planning in the assault, but I cannot exclude the reasonable possibility that those injuries were inflicted spontaneously, during a struggle. The offender may have been carrying such a weapon for other purposes. I have already noted that he was financially distressed at that time and that there were people who claimed he owed them money. Some of the demands on him were being made in strident terms, suggesting a possible threat to the offender's own safety. It is not possible to draw any confident conclusion on that issue. It follows that, while it is possible that the offender entered the house intending to attack or subdue Mrs Qidwai, that is not a conclusion of which I can be satisfied beyond reasonable doubt. 29When police searched the premises, the envelopes described by Dr Qidwai were still there but the cash was gone. It was suggested during the trial that Mrs Qidwai may have removed the cash herself in order to bank it later that day, as was her practice. I think that is unlikely, but it is a possibility which cannot be excluded. Accordingly, I think I am compelled to sentence the offender on the basis that it is not established whether any cash was in fact stolen. That conclusion is of little significance, however, since I am satisfied beyond reasonable doubt that the offender entered the home of the deceased intending to steal cash, which aggravates the seriousness of his offending. On behalf of the offender, it was submitted that the offence was not committed "for financial gain". Whilst I accept that the offender did not intend to kill Mrs Qidwai for that end, he killed her in the course of the unlawful pursuit of financial gain. The difference is one of semantics. 30The offender was aware that the house had surveillance cameras. After the offence, it was found that the cables to a CCTV recorder located in the kitchen cupboard had been cut and the recorder taken. I am satisfied beyond reasonable doubt that it was the offender who cut the cables and took the recorder, thinking that his actions may have been recorded. 31There was also evidence given at the trial as to a necklace which went missing that day. It was always worn by Mrs Qidwai and is accordingly of great sentimental value to the family. It seems likely, having regard to the fact that Mrs Qidwai suffered injuries to the neck, that it was broken or came undone during a struggle. It would not seem to be the kind of item the offender would steal, unless to remove evidence. I am unable to be certain one way or the other as to the fate of the necklace. 32When the offender left the premises that day, his ute was parked near the house. Eddy Lolohea was waiting with the tools at the other end of the driveway. Eddy gave evidence that he saw the offender wave in the direction of the house before driving up the driveway to collect him. I am satisfied that the offender did so as a pretence, to create the false impression that all was well. I am further satisfied that, in fact, Mrs Qidwai was at that point lying dead on the floor in her bedroom, where she was later found by Maha. 33The seriousness of the offence is aggravated by the fact that it was committed on a vulnerable woman in her own home. Mrs Qidwai was vulnerable on account of her age and frailty. Mr Lange, who appears for the offender, took issue with the proposition that the location of the crime (being in Mrs Qidwai's home) was an aggravating factor, since she had invited him inside and he was accordingly lawfully on the premises: cf Montero v R [2013] NSWCCA 214 at [43] to [54]. However, he accepted, in accordance with the decision in Montero, that it is open to the Court to take into account the fact a person has a right to expect safety within the confines of his or her home. Whether or not the offender was in fact feeling unwell that day, I am satisfied beyond reasonable doubt that he talked his way past a reluctant Mrs Qidwai, taking advantage of her kindness, with the intention of stealing from the home. In my view, the commission of the offence in the home in those circumstances is appropriately regarded as an aggravating factor. 34The Crown and counsel for the offender each made submissions as to where the offence falls by reference to a putative midrange of objective seriousness. The Crown submitted that, "adopting a broad view as to what the middle of the range of objective seriousness is, the present case would be placed in the upper range". On behalf of the offender, it was submitted that the offence falls below the midrange of objective seriousness. 35It is my understanding of the decision of the High Court in Muldrock that the Court is not required to make such an assessment: Muldrock v R [2011] HCA 39 at [25]. However, it remains commonplace for submissions and findings to be framed in such terms. To the extent that it is useful or necessary to articulate a characterisation of the offence in relative terms, I would regard the present offence as falling somewhere between the two assessments offered. 36It was acknowledged on behalf of the offender that there was no basis for finding that he has any remorse. He defended the charge, as he was entitled to do, but the manner of his defence was inconsistent with any remorse. He has told many lies to escape responsibility for his offending. Confronted with a strong circumstantial case, including the telling trail of his own DNA, he concocted a bizarre tale of having been forced by three masked gunmen to grab Mrs Qidwai as she tried to escape from them (not him). An enormous amount of police time was wasted investigating that concoction. The police were even cross-examined before the jury as to the adequacy of that investigation only to hear, when the offender later went into the witness box, that it was all a lie he told to get out of gaol. Even after his conviction by a verdict reached quickly and unanimously, the offender maintains his denial of any participation in the offence and has already declared his intention to appeal (pre-sentence report dated 7 November 2014). 37None of this is to say that the offender is to be punished additionally for his lack of remorse, or even for running a bizarre defence, but only to observe that the experience of this trial eloquently explains why parliament has seen fit to allow the court to impose a lesser penalty in the case of a guilty plea or a defence otherwise conducted in such a way as to facilitate the administration of justice. An offender who chooses to spare grieving witnesses, hard-working police and conscientious jurors the kind of pointless distress and inconvenience visited upon them in this trial can rightly expect to have his penalty reduced. No such reduction can be given in this case. 38The Crown submitted that there is a risk of re-offending. The submission was based on the content of the pre-sentence report, which states: "According to the level of service inventory/revised actuarial risk/needs assessment tool, the offender is assessed as a low risk of reoffending". 39I would understand that assessment to mean that the risk is low as opposed to being medium or high. I doubt whether the authors of such reports would ever venture a view, in the case of a person found guilty of murder, that the risk of reoffending was non-existent. 40The offender relied on a report dated 4 November 2014 prepared by Dr Olav Nielssen, psychiatrist. The principal relevance of that report is the account it gives as to the offender's experience in prison since his arrest, to which I will return. The history obtained by Dr Nielssen from the offender (together with the additional information obtained from the offender's sister) revealed "no obvious explanation" for the offence. On the question of reoffending, Dr Nielssen said: "It is not possible to provide much guidance about an individual's future behaviour or the likely effect of a long term of imprisonment." 41Dr Nielssen did not think the offender has any "psychiatric disorder associated with any pattern of impulsive or self-defeating behaviour". He noted that there was no history of any pattern of anti-social conduct or substance abuse disorder, which he says are the main predictors of recidivism. Dr Nielssen also noted the offender's history of consistent employment and his supportive family. On that basis, he assessed the offender's likelihood of recidivism to be low compared with most people charged with similar offences. 42The offender's failure to accept responsibility for his offending is troubling in this context. On balance, however, Dr Nielssen's report has persuaded me that the offender is unlikely to reoffend. It is clear that the present offence was out of character. His apparent inability to accept responsibility for it in the face of an overwhelming circumstantial case may come down to a question of pride or an inability to say out loud that he did such a terrible thing, knowing the ramifications that would have for his wife and young children. On balance, I think the punishment he must necessarily receive, coupled with the age he will be when released from prison, will combine to ensure that he will never let himself fall into trouble again. 43For substantially the same reasons, notwithstanding the offender's refusal to accept responsibility for his offending, I accept that the offence was out of character for this offender and am accordingly prepared to conclude that he has good prospects of rehabilitation. 44Six members of the family of the deceased read victim impact statements at the proceedings on sentence. 45The Crown made an application to have those statements taken into account by the Court in connection with the determination of the punishment for the offence, as allowed under s 28(4) of the Crimes (Sentencing Procedure) Act 1999. That is a new provision of the sentencing legislation. It allows the Court to take such statements into account as an aspect of the harm done to the community "if the court considers it appropriate to do so". 46As has been noted by another judge of this Court, the legislation does not explain how a sentencing judge is to determine when it is "appropriate" to take the harmful impact on a murder victim's family into account in determining punishment: R v Hines (No 3) [2014] NSWSC 1273 at [78] per Hamill J. It seems unthinkable that the amendment reflects an acceptance by the legislature that some lives are more valuable to the community than others. I would construe the new provision as an important mechanism for ensuring that the evidence of family victims is placed before the court to give texture to the undoubted proposition that every unlawful taking of a human life harms the community in some way. In that way, the provision serves the purposes of sentencing stated in s 3A of the Act, one of which is to recognise the harm done to the victim of the crime and the community. 47The statements read in the present case have told the Court of Shahnaz Qidwai's extraordinary warmth and kindness. She loved her family dearly and was dearly loved by all of them. Her death has distressed them deeply. To her husband, Dr Khalid Qidwai, she was the love of his life, his best friend, his world. To her children Dr Faisal Qidwai, Mrs Sana Rasool, Dr Hana Saeed and Dr Maha Qidwai and to her daughter-in-law, Dr Sumeena Qidwai, she was the epitome of motherly protection and nurturing love. To Maha, the youngest, fell the awful fate of discovering her mother's body. That grim experience has cast a haunting veil over her memories of her mother. Although Maha is a woman who plainly carries the strength of her mother, she spoke less than a month ago of being still unable to return to the home in which she was raised. 48The Qidwai family will always ache for Shahnaz Qidwai. The criminal justice system does not pretend to heal the hurt of such loss, but the Court can recognise the harm the whole family has suffered and acknowledge their strength and courage in explaining the dimensions of their loss. 49The offender is 35 years of age. He had an unblemished childhood and was raised in a close and supportive family. He is married and has three children of young age. His wife and family continue to support him. As already noted, he has no prior convictions. A number of witnesses gave evidence at the trial as to his good character. I accept, as submitted on his behalf, that those witnesses "spoke with one voice", describing him as a gentle soul. 50He left school during year 12 and started a course in building and carpentry. He has continuously been either employed or engaged in his own business in the building and concreting industry since that time. 51The offender contends that he has been subjected to a degree of extra-curial punishment. The evidence at trial established that, while he was on remand awaiting trial, he was the victim of a serious assault at Goulburn gaol. I am satisfied, on the balance of probabilities, that the assault was committed as reprisal for the fact that he was accused of murdering a Muslim woman. Whilst I do not accept aspects of the offender's evidence on this issue, there was ample independent evidence to corroborate his claim that, within the gaol community, there is a dangerous level of conflict between Lebanese Christians and Lebanese Muslims. The offender is a Lebanese Christian. Mrs Qidwai was not Lebanese, but she was a devout Muslim. The records maintained by Corrective Services confirm the likelihood that the assault against the offender was committed because the word got out that he had been charged with the murder of a Muslim grandmother. 52The assault occurred in the holding cells at Goulburn gaol and was captured on CCTV footage which was played during the trial. It was a vicious assault ending with the offender being stomped on the head. It stopped only when guards were able to unlock the cell. Dr Nielssen's report expresses his opinion that the offender suffered traumatic brain injury as a result. Dr Nielssen also concluded that the offender now suffers from a disabling level of anxiety and depression. That state was triggered by the event of being charged and imprisoned but it has been exacerbated by the offender's ongoing fear of further reprisal following the assault on him. 53The evidence of the assault and Dr Nielssen's opinion as to its impact are relevant in two ways. First, I am satisfied that the assault amounted to informal punishment imposed extra-curially in addition to that to be imposed formally by the court, which is a factor relevant to sentence. The criminal justice system in a civilised democracy cannot overlook and thereby condone violent private retribution. 54Secondly, as a result of the assault and other threats levelled at the offender, his time in prison is spent in a state of acute fear. His fears have evidently been accepted by Corrective Services to be rational and, for that reason, he has spent a significant period to date in protective custody. It seems unlikely that he will remain in need of protection throughout the entire period of his sentence but equally unlikely that the need for protection is yet at an end. 55I accept, as submitted by the Crown, that the fact that a prisoner will serve a sentence in protective custody is not automatically to be regarded as a circumstance mitigating the sentence: RWB v R; R v RWB [2010] NSWCCA 147 at [192] to [195] per Simpson J; Johnson J and myself agreeing. In the present case, however, there was cogent evidence to establish that the offender's fear of further reprisals against him is constant and oppressive. His fear arises from the impossibility of protecting certain prisoners from the very violence their incarceration is intended to condemn. In the particular circumstances of this case, I am persuaded that the offender's time in prison will be more onerous on that account than for many prisoners in the general prison population. 56I have not reduced the overall sentence on that account. However, I am satisfied that the state of fear in which the offender will probably serve a good part of his sentence is a special circumstance warranting a departure from the statutory ratio between the non-parole period and the balance of term: see s 44(2) of the Crimes (Sentencing Procedure) Act; cf R v Astill (No 2) (1992) 64 A Crim R 289 at 294.8 per Kirby P; Sully J evidently agreeing at 303.4. I have allowed a slight adjustment on that basis. 57In all the circumstances, I have concluded that the offender should be sentenced to a term of imprisonment for 24 years with a non-parole of 17 years. The sentence should be fixed to commence on the date on which the offender was arrested. The offender will be eligible for release on parole upon the expiration of the non-parole period on 14 August 2029. 58Orders: (1)Tony Halloun, you are convicted of the murder of Shahnaz Qidwai. (2)I sentence you to a term of imprisonment with a non-parole period of 17 years commencing on 15 August 2012 and concluding on 14 August 2029 and a balance of term of 7 years concluding on 14 August 2036.