R v Musa

Supreme Court of NSW|2023-02-16|Before: Button J

Solicitors: Solicitor for Public Prosecutions (Crown) Legal Aid NSW (Offender) File Number(s): 2020/190754

Introduction

On 29 November 2022, Ms Jackline Sabana Musa ("the offender") was arraigned on an indictment before a jury panel and me. A single count was alleged: that on 27 June 2020 she had murdered Payman Thagipur ('the deceased"). A simple plea of not guilty of murder was entered.
The trial concluded on 12 December 2022, when the jury returned a verdict of guilty of murder.
Proceedings on sentence were conducted on 16 February 2023, and it now falls to me to sentence Ms Musa for the offence of murder.
That offence carries a maximum penalty of imprisonment for life, and, in these circumstances, a standard non-parole period of 20 years. The Crown has not submitted that this is a case that calls for the imposition of the maximum penalty, a proposition with which I agree.
The law is that aggravating features above and beyond the elements of the offence must be proven to my satisfaction beyond reasonable doubt. Mitigating features in favour of the offender need only be proven on the balance of probabilities. Some aspects, inevitably, will remain unclear to me.

Objective features

I shall first discuss the offence itself, and the context in which it came to be committed.
The offender and the deceased had been in a romantic relationship, although I must say that its parameters, its intensity, and its true nature are somewhat unclear to me. I am satisfied that, in the period leading up to the offence, the feelings of the offender for the deceased were much stronger than his for her.
By the morning of the day of the offence, the offender felt cut off from the deceased, and that he had mistreated her financially. On the advice of an acquaintance, she sent him a heartfelt text message, to which there was no response. In the early evening, she took the unusual step of driving from her home in a suburb of Sydney to Granville, in an effort to locate him there at cafés or restaurants that he frequented. Not having found him, she then drove to his apartment block at Wentworth Point. That is a security building, and she gained access to it without the knowledge of the deceased. She parked her large Toyota Kluger SUV in the car park of the building.
To be clear: I accept the joint position of the parties that I could not be satisfied that the offender had formed any intention to harm the deceased at that time.
The apartment of the deceased was on the same level as the car park for the building. Having obtained access to the foyer, Ms Musa knocked on the door of that apartment. The deceased opened the door, expecting perhaps to see a neighbour, and certainly not expecting to see the offender. She entered his home, and found another woman there. The offender promptly departed, but not before spitting in the face of the deceased.
After that, she walked back into the car park and re-entered her vehicle. The deceased dressed and followed her, and was for a short time in conversation with another resident some metres away.
The offender saw the deceased. Over the course of several seconds, she spontaneously formed an intention to inflict really serious physical injury on him. As is shown on CCTV product from the car park, she drove the Kluger towards him, and the front of the vehicle made contact with his person. For several seconds, the vehicle proceeded with the deceased on the front of it. I discern no sign of the vehicle slowing, let alone being brought to a halt. The Kluger travelled through a bollard, and came to a final halt when it collided with a wall of the car park. The deceased was trapped between the front of the vehicle and that wall. He survived the collision for a short time, but was tragically crushed to death by the impact.
I accept the further joint position of the parties that I could not be satisfied beyond reasonable doubt that the intention of the offender at the time of the offence went beyond the infliction of really serious physical injury. Having said that, it is undeniable that driving a large vehicle at a human being, with intent to seriously injure that person, just as the offender did, gives rise to a powerful risk of death.
After the collision, the offender did not render assistance to the deceased. Nor did she draw the attention of people who entered the car park a short time after the collision to his state. On the other hand, she did call emergency services, after a short time.
Police arrived promptly, and the offender was arrested at the scene. She was open about the collision having taken place, but, in accordance with the verdict of the jury, she was not truthful with the police until near the end of a subsequent recorded interview with them. Ms Musa has been in custody ever since.

Objective seriousness

Although every murder is a crime of the utmost seriousness, I am required to make a concise assessment of the gravity of this particular offence, not least so that I can sensibly reflect upon the maximum penalty and the standard non-parole period. The following analysis, I accept, may cross back-and-forth a little the line - itself blurred - between objective and related subjective features.
As I have said, the offence was spontaneous and not premeditated. The intention to inflict serious harm existed for only a matter of seconds. One cannot be satisfied of an intention to kill.
On the other hand, the life of a fellow human being was violently extinguished in a place where he was entitled to feel safe. His final ordeal was short, but terrifying, and he surely died in enormous pain. What occurred was a deeply self-centred imposition of violence on a fellow human being.
Speaking more generally, this offence is an example of what used to be called a crime of passion. So much is clear from the heartfelt message of that morning, the search for the deceased in the early evening, the discovery of him with another woman, and the spitting in his face at the doorway of his own home.
Having said that, I think that modern Australia regards that terminology as utterly out of date. Modern Australia, I believe, expects a person disappointed and upset by romantic matters to deal with those emotions maturely and certainly without harming others, whether emotionally or physically. Finally, Australian society and Australian criminal courts firmly condemn domestic violence of any kind, committed by a person of any gender, let alone fatal domestic violence.
As I foreshadowed at the proceedings on sentence, I regard this as a grave example of an extremely grave offence.

Subjective features

I turn now from a discussion of the offence to a discussion of the person who committed it.

Plea of not guilty; no remorse

As I have said, the offender pleaded not guilty to murder. Although manslaughter was left to the consideration of the jury, the position of the offender at trial was that she was not guilty of that lesser form of homicide as well. Since the verdict, there has been no development in that regard. Patently, there can be no utilitarian discount in this matter.
Nor is there evidence of remorse, or even grudging acceptance of responsibility. Nothing was placed before me in the proceedings on sentence as to how the offender might feel about what has occurred, including in a psychological report. I do except that, on some level, the offender has come to see the enormity of what she has done; I cannot go further than that.

Background

Ms Musa was born in July 1975. Accordingly, as at the date of the offence, she was aged 44, and she is now aged 47.
She was born in Sudan in north-eastern Africa. It is well known that that unhappy country has suffered the double burden of profound underdevelopment combined with civil wars based on ethnicity and religion.
As for the former factor, the offender was one of many siblings. She grew up in a village that, for example, had no running water. Her family was often short of food. Her father died when she was very young, and her mother, a deeply religious woman, devoted herself to the care of her large family in poverty-stricken circumstances.
As for the latter factor, the wars began when the offender was aged nine. I accept that she suffered many traumatic, indeed horrific experiences over the years. By way of example, whilst she was part of a convoy fleeing the fighting, the vehicle in front of hers was blown up, and other persons were injured and killed before her eyes. On many occasions she was in fear of death. Eventually, the offender was able to make her way to Khartoum, the capital. Even there, life was unstable and unsafe.
Ultimately, the offender was able to leave Sudan for Egypt, where she spent some time. She eventually came to Australia in 2004 as a refugee, when she was aged about 28. She was accompanied at that stage by her aged mother and her children. By that time, she had lost many family members to the direct and indirect effects of poverty and war.

Unblemished character

In fact, despite that very unlucky start in life, and her psychological problems to which I will refer in a moment, Ms Musa made a success of her new life in this country. She became a citizen a few years after arrival; she worked on improving her English; she has been employed consistently; she has cared for her four children and her aged mother; she has pursued her own deep religious conviction; and she has completely abstained from drugs and alcohol. Most importantly, there is no suggestion that she has ever been convicted of an offence of any kind, whether in Sudan, Egypt, Australia or anywhere else.
A negative note is that the offender has been unable to develop satisfactory romantic relationships. Part of that was an underlying sense of her own worthlessness, and very negative thoughts generally about herself. She has been very badly treated by at least one former romantic partner. She has never found settled happiness in love, and I believe that that has played its part in the tragic events of the evening in question.

Psychological conditions

Relatedly, I have no doubt that, by the time she arrived here, Ms Musa was suffering from post-traumatic stress disorder (PTSD) as a result of her many experiences in Sudan. I also accept that, for many years, she has suffered from fluctuating levels of anxiety and depression, again as a result of psychological damage done to her when she was young, through no fault of her own. Regrettably, until her incarceration Ms Musa received no treatment for those problems, in part because she was unaware that such treatment is available in this country and also, I think, in part because she felt that those conditions were a normal way to feel.
As for the disputed question as to whether those conditions had any role to play in the offence, it is true that one cannot point to a specific cause and effect. For example, there is no question of the offender having experienced a PTSD flashback in the seconds before the murder. Similarly, because of her absence of remorse, nor can one reflect upon anything that Ms Musa might have said about why she herself believes the offence occurred.
Even so, I think it no coincidence that this offence was committed by a woman who had suffered a grossly deprived and traumatic childhood and adolescence; who has suffered psychological damage as a result; and who, as a result of her psychological conditions - most particularly, a feeling of worthlessness - has never found happiness in love. The principles relating to how psychological or psychiatric conditions can be taken into account in sentencing are flexible and broad. I have taken this woman's conditions into account to some degree in mitigation on sentence, not as the slightest excuse for this act of deadly violence, but as some explanation as to why it came to occur.

Gaol

In custody, the offender has worked when able, and has presented no trouble to the authorities. But gaol has been a particularly difficult experience for her over the past many months, approaching 3 years. Her psychological problems have manifested themselves in acts of self-harm. She has also suffered panic attacks, and I saw her experience one of them myself when the adverse verdict was delivered. Gaol has also been a very lonely and isolated place, for the following reasons. The ethnic and cultural background of the offender is still reasonably rare amongst Australians, and she shares it with few other prisoners. She has received no contact visits, for reasons that are unclear to me. Many of the other prisoners are burdened with problems with drugs and alcohol, something to which Ms Musa has no connection whatsoever. She has suffered bullying and her strict religious observance has also caused problems. The restrictions born of the pandemic have been difficult for everybody in Australian society, but especially so for persons in custody. Finally, I accept that the incarceration of this previously law-abiding woman of mature years is a source of great shame to her family and to herself.

After release

As for the future, it is true that Ms Musa suffers from a number of damaging conditions that might lead one to be cautious about her prospects on release, many years from now. But I think her readiness to get help, to the extent that it is available, eases that concern. I also expect that she will have the continuing love and support of family members at that later stage. Finally, it is to be recalled that this act of the utmost violence was grossly out of character, and committed by a woman of mature years who had never committed a crime of violence in her life. For all those reasons, I approach the future with cautious optimism.

Various matters

Turning to a number of discrete matters, the parties were agreed that any sentence must be backdated to the date of arrest, 27 June 2020.
Secondly, I do not propose mechanistically to discuss statutory aggravating and mitigating factors, because this judgment refers to all that I have thought to be important.
Thirdly, I was referred to some broadly similar cases by the parties, and I have reflected on them. But because each exercise in sentencing turns on its own facts, I shall not trouble to analyse them here.
Fourthly, because of the violent nature of the offence, Ms Musa must be aware that she may be held in custody even after the complete expiration of the sentence, if it is established that she represents a continuing danger.
Finally, I accept the joint position of the parties that special circumstances could be found that lead to a reduction in the non-parole period. I adopt that course, unusual in light of the inevitable length of the parole period in a murder sentence, for the following reason. I believe that, after the experience of lengthy incarceration, on top of all that happened to the offender when she was young, readjustment to the law-abiding, constructive life that she led in the community before this tragedy will be an enormous effort, and will take many years.
Having said that, the reduction is modest, because I believe that no lesser period of mandatory incarceration would reflect the objective and subjective features of the matter.

Conclusion and orders

In short, this case is a tragedy from many perspectives: primarily, from that of the deceased, of course, and those who loved him and honour his memory; but also from the perspective of a previously law-abiding offender, her family, and Australian society generally.
In short, a life was taken simply because a fellow human being was exercising autonomy in romantic matters, as he was absolutely entitled to do. Deplorable violence was inflicted upon him, whereby he was crushed to death. There is no remorse on the part of the offender, even now. To be weighed against those matters is that, after an early life of great deprivation and disruption, the offender made a successful fresh start in this country, something especially to her credit in light of the psychological problems that had been inflicted upon on her. They played their part in this fatal explosion of emotion. Gaol has been and will be difficult every day for many, many years. I believe that, many years from now, the offender has a good chance of becoming a valued member of the community again. By way of my sentence, I seek to balance and reflect that multitude of countervailing factors.
Jackline Sabana Musa, you are convicted of the offence of murder.
I sentence you to a non-parole period of 14 years, to commence on 27 June 2020 and conclude on 26 June 2034.
That will be followed by a parole period of six years, to conclude on 26 June 2040.
To express my sentence another way: I have imposed a head sentence of 20 years, with a non-parole period of 14 years, with a full backdate.
The first date upon which the offender will be eligible for possible release to parole is 26 June 2034.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 March 2023

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