R v Mamour [2011] VSC 113

Supreme Court of Victoria|2011-03-28|Before: COGHLAN J

CRIMINAL LAW - Murder - Guilty plea at the earliest opportunity - Circumstances of offending - Previous good character - Stable background and employment history - High probability of adjustment disorder with depressed mood of moderate severity - Lack of insight into offending - Limited prospects of rehabilitation - Moderation of principles of general and specific deterrence.

1 Lino Mamour, on 14 February 2011 you pleaded guilty before me to the murder of your wife Juana at about 3.00pm on 24 August 2010.

2 The details of the murder come only from what you told Dr Sullivan[1] and from your counsel. You had said that on 24 August 2010 you had returned home from work, slept for a couple of hours and then attended a funeral and returned home. When you returned home, you say that your wife Juana told you not to sleep in the bed because she had slept with someone in it. You told Dr Sullivan that you treated that as a joke and you left the house for a while. When you returned, your mobile phone rang and nobody replied when you said "Hello" a number of times. You could, however, hear talking in Arabic and you suspected that they were the men who had been sleeping with Juana and think that it is possible your wife told you that. You told Dr Sullivan that "Juana told him that those men slept 'with her and the baby'." You then made a call to Juana's mother in Sudan, but Juana stopped you. You told her to leave the flat but she refused. You went and bought a small bottle of whisky (probably a miniature bottle) which you drank in your car outside the flat. When you returned to the flat you were angry. You told Dr Sullivan that Juana pulled up a chair in front of her, told you to sit on it and said to you "If you are not a coward, kill me". You then took a large (34cm) knife, which you had recently purchased, from a cupboard and it is your recollection that you stabbed her twice. She was in fact stabbed a number of times to the back and chest. Stab wounds to the thoracic aorta and the right ventricle to the heart were each capable of causing death. One of those injuries followed from the knife having passed through the sternum, which would have required a significant amount of force. Juana also suffered a number of defensive injuries.

3 I am prepared to accept that your limited recollection of the event is genuine. Immediately after stabbing Juana, you drove to the Dandenong Police Station. You were wearing very badly blood stained clothing. You told the police you had killed your wife.

4 You told an interpreter, who had been brought to the police station to assist, that your wife had showed you some clothing and said "see my lover, the one who loves me bought me this". You do not accept that you said that to the interpreter but not much turns on whether that was actually said by you or not. It would have been consistent with what you told Dr Sullivan about the events and consistent with the evidence that you had been suspicious of your wife.

5 I proceed on the basis that there is no evidence from which it could be concluded that your wife was unfaithful to you. I accept that for some reason you had decided that she had been and that led to animosity you held towards her which culminated in you killing her.

6 You have no prior convictions and no reputation for violence. The one matter mentioned in that regard is that you told Dr Sullivan:

"He has only been arrested on one occasion and said the police had visited the house once for a matter of domestic violence but no charges or problems had followed from this."

7 The circumstances of that matter are unknown and I do not intend to have any regard to it in sentencing you.

8 I will set out your background briefly. You were born in Juba, southern Sudan on 1 January 1969 and are now 42 years of age. You are of Bari ethnic origin and Christian. You are the youngest of four boys. One of your brothers now lives in the USA and your other two brothers are still in Juba. Your parents died within about 12 months of one another when you were 14 and after that your eldest brother, who is about 12 years older than you, looked after you and your brothers. You completed your education and were admitted to the university where you studied accounting. You worked part time as a mechanic. As I understand it, you completed all the formal matters at the university, but could only graduate if you completed military training. The civil war in Sudan was then in full force and you did not want to go into the army because you had seen what had happened to others.

9 You did however complete one part of military training you fled to Egypt in 1999. You were then 30 years of age. Although you might have had the opportunity to come to Australia after about 12 months, you delayed your departure partly for a medical checks which had to be carried out but also because you wanted to support your two nephews, Stanley Sulieman and Maurice Lado. You gave them your support and in 2002 the three of you were able to come to Australia.

10 When you came to Australia, you lived in Dandenong. You developed a circle of friends and you were welcomed into the local Sudanese community. On your arrival, you studied English and did a course in aged care in which you qualified in 2003. You did work in aged care, but later went to Warrnambool where you worked in the meatworks and were eventually trained as a butcher. Over the four years preceding this case, you worked at Superior Pak as a machine operator. Other than in a respect I will deal with shortly, your work record has been very good and you have been highly regarded by your employers.

11 In a written reference I received from two of your nephews, they spoke highly of you and said that you had been generous in supporting others both in Sudan and here.

12 You were in a relationship with a woman named Estar between 2004-2007. You have a daughter called Jofil who is now about five, but you have little or no contact with her.

13 You had known your future wife Juana before you left Sudan and you kept in contact with her when you came to Australia. You became an Australian citizen in 2008 and you went to Sudan in that year where you married Juana in a traditional ceremony. You returned to Australia and Juana was eventually able to come here in June 2010. Your nephew Stanley, with whom you had been living with at the time of her arrival and continued to live with you, thought everything before the two of you was OK. You were the sole provider although Juana was on Centrelink benefits. Juana must have become pregnant very shortly after arriving in Australia, because she was three months pregnant at the time of her death.

14 In the months leading up to the offence, there was a noticeable change in your behaviour and you appeared to form an unwarranted belief that your wife was being unfaithful to you. Your cousin, James Paulo, said that that was not true, your work began to suffer and your employer met with you because you had taken a number of days off without producing a medical certificate and you were not answering your phone. You told him that you had family matters which were concerning you because you suspected that your wife was having an affair and that is why you were missing work. Your employer offered you assistance in the form of counselling. Before counselling could occur, these events happened. He had spoken to you on 18 August and again on 20 August 2010 with reference to your wife and you said you had "busted her" and were just leaving the police station. When you were examined by Dr Sullivan, you told him that Juana was a good wife. She was also Christian and Bari. You became suspicious of her, it seems, almost as soon as she arrived in Australia, but you had no evidence to support your suspicions, including finding nothing in the house. You and your wife had a meeting with a Sudanese elder and your wife denied any unfaithfulness. You were worried that she would report what happened to her family and your marriage would end.

15 Over the following months, you suspected that you were being monitored by some Sudanese men, and that appears to be why, a few weeks before the murder, you bought the knife and placed it in the cupboard. The packaging of the knife was in the can when you went to the police station. You believed your wife had a secret phone of which there is no evidence.

16 You were also concerned about the attendance on the doctor related to her pregnancy, but you were not able to say exactly why.

17 I have already set out what you said about the actual events of 24 August 2010.

18 There is conflicting evidence about your use of alcohol and the effect it may have had on you. You do not, however, appear to be a person who regularly abused alcohol and although you told Dr Sullivan about drinking the small bottle of whisky, alcohol appears to have played no part in your actions.

"The role of his partner's pregnancy is unclear but may have been a stressor for Mr Mamour. He reports some paranoia that the antenatal checkups were indicative of her possible infidelity or that the doctor was holding information back from him.

Mr Mamour describes the development of jealous ideas but there is no clear indication of delusional elaboration of his beliefs. His statements about Juana's comments on the day are unverifiable and there were no other witnesses. The only collateral information about his jealousy is that of his employer who noted him to be uncharacteristically distracted and impaired in work performance. While some features of his account (the telephone call, concerns about the green Ford, ideas that he was being monitored) are suggestive of persecutory ideation, Mr Mamour does not give a history otherwise suggestive of delusional jealousy. There is no preceding or subsequent information suggesting that he was psychotic at the time; or that his account of the events at the time of the alleged offence is in any way untruthful or misrepresented.

While there is no clear current indication of mental disorder, Mr Mamour's reported preoccupation and distress prior to the alleged events suggest that he was increasingly anxious and that he was prone to interpreting events negatively. He would likely have fulfilled a diagnosis of adjustment disorder with depressed mood of moderate severity prior to the offence. He was increasingly preoccupied with perceptions that his wife was unfaithful and this was noted to affect his sleep, relationship and employment. His jealous concerns are likely to have impaired his ability to think clearly or make calm and rational choices. There is a causal nexus between the offending and his adjustment disorder. There is otherwise no history of violence or offending.

Mr Mamour is coping adequately in prison, but his isolation, ethnicity and difficulties with language will render his incarceration more burdensome."[2]

20 Juana Antar Flamino Legge, who was 29 at the time of her death, will be greatly missed by her large family. I received a total of 13 victim impact statements from the mother, seven sisters, three brothers and an aunt. In the large family she was a mother figure to many of her siblings. They mourn her loss greatly and their loss is heightened by the fact that she was pregnant at the time of her death. The victim impact statement of Rose Poni Otto Lado, the aunt of the deceased who was present in Court, was read to the Court. She lives in Australia and the balance of the family are still in Sudan.

21 Her relatively brief statement summarises well the feeling of the whole family:

"My name is Rose Poni Otto Lado, Aunt of the late Juana Anthon Falmino Legge declaring how her death affected me. As I had been with her just a day before her death, I don't know how I can forget that time because I can still see her face, smile and love. Whenever I remember and think about it makes me cry and that fear that anything can happen to me or my family in the same way, I don't feel safe in my own house. I can't sleep properly as a result of that. I have lost her as a daughter, a friend and her support. As an active member in the community I can't or don't feel well enough to continue with my usual duties and activities. I am not enjoying my life as a used to because I don't want to be in public in order not to be asked about her death and how I miss her, I have lost trust in people and my relationship with others have become negative as I'm living a stressful life. Financially money comes and goes but life never comes back. As it was unexpected responsibility, it cost me over 5000 dollars from the days of mourning until this moment, I didn't recover fully and I don't know how I will get through it. I am in high risk of losing my job because of my unusual negativity towards my work and colleagues. It is a big loss to my family and we try our hardest every day to move on with our lives but is extremely hard."

22 Mr Mansour Wani, who is Chairman of the South Sudan Equatorians Association (SOSEA), provided a statement on behalf of the Sudanese community he represents. It is a reminder to us of the effect of conduct such as yours has on the relatively small community. They mourn the loss of your wife and feel that you have brought shame on the community.

23 Mr Dempsey, who appeared on your behalf, put before me all the material which he could to support you and did so clearly and capably. In fixing an appropriate sentence, there are a number of matters to which I am obliged to have regard and have had regard.

24 First of all you went to the police immediately and handed yourself in. Subject only to the delay of obtaining a report from Dr Sullivan which was entirely appropriate, you pleaded guilty to murder at the earliest opportunity. It is a very significant matter to plead guilty to such a serious offence.

25 Second, in part arising out of your plea and after looking at the material generally, I am satisfied that you are genuinely sorry for what you have done.

26 Third, you are entitled to have taken into account the fact that Dr Sullivan said:

"While there is no clear current indication of mental disorder, Mr Mamour's reported preoccupation and distress prior to the alleged events suggest that he was increasingly anxious and that he was prone to interpreting events negatively. He would likely have fulfilled a diagnosis of adjustment disorder with depressed mood of moderate severity prior to the offence. He was increasingly preoccupied with perceptions that his wife was unfaithful and this was noted to affect his sleep, relationship and employment. His jealous concerns are likely to have impaired his ability to think clearly or make calm and rational choices. There is a causal nexus between the offending and his adjustment disorder. There is otherwise no history of violence or offending."

27 Mr Dempsey put to me that that finding entitled you a modest reduction and sentence I have regarded it in that way,[3] both general and specific deterrence have been moderated to a degree.

28 Fourth, following what Dr Sullivan said about your isolation, ethnicity and difficulties with the English language" also entitle you to a modest reduction in sentence.

29 Fifth, the offending was almost entirely unplanned.

30 Sixth, you have led a blameless life and have actively assisted others. The assistance to your nephews in particular which delayed your departure as a refugee from Egypt is a matter strongly in your favour and indicative of good character very different from that shown in this offending.

31 Seventh, you came to this country a refugee, separated from a large part of your family and your heritage and culture.

32 I am satisfied that you have not, at least as yet, much insight into your offending and that means that I am somewhat guarded about your prospects of rehabilitation. Your previous good character, however, gives some basis for optimism.

33 This was a serious and brutal attack upon a defenceless woman. Your wife was pregnant at the time of her death. Both the law and commonsense dictate that that is to be treated as a matter in aggravation.[4] I am also obliged to have regard to denunciation and just punishment. It is inevitable that general deterrence is an important factor of sentencing relating to this type of behaviour.

34 I have considered the material which was given to me, including the sentences imposed by me and other judges in similar, but not identical, cases.

35 I gave consideration to whether or not I would fix a lower than usual non-parole period. I have fixed what I believe to be a moderate sentence and a non-parole period appropriate to it. In all the circumstances, I do not regard a non-parole period which was lower as serving all the proper purposes of sentencing required by that part of the sentence.[5]

36 I sentence you to be imprisoned for 18 years and order that you serve 14 years before being eligible for parole. I regard the period of four years on which you might be on parole as a period sufficient for you to be under the supervision of the Parole Board in the community. Whether you will be released at that time is a matter which will depend on how you progress from now and the Parole Board.

37 Pursuant to s 6AAA of the Sentencing Act 1994, I state that I would have sentenced you to be imprisoned for 22 years with a non-parole period of 18 years had it not been for your plea of guilty. I make it clear that the earliness of your plea was a matter of particularly important consideration in the circumstances of the case.

38 I declare that 127 days have already been served pursuant to this sentence.

39 I order that the statement pursuant to s 6AAA and the declaration of pre-sentence detention be entered in the records of the court.

[1] Dr Sullivan examined the accused on 15 January 2011 and provided a reported dated 15 March 2011.

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