R v Saad & Saad [2003] VSC 438

[2003] VSC 438

Criminal Law - Murder - Sentence - Murder by wife and brother - Premeditation.

1 Hany Adliy Saad and Mary Saad, you were both found guilty by a jury in this Court on 20 September 2003 of the murder of Wadie Saad, your brother and husband respectively. It is now my duty to sentence you according to law.

2 At about 1.45 am on Sunday 18 February 2001 some people driving in Majorca Street St Albans observed a car on fire, parked on the western side of the street, outside number 13. The position in which the car was parked was directly opposite the Sunshine Hospital which is on the eastern side of Majorca Street. It was not until a number of fire brigade units had brought the fire under control that it was realised that the car contained what was by then the very badly burned body of a man. That man was Wadie Saad. He was your brother, Hany Saad. He was your husband, Mary Saad. His body was found in the driver's seat of his motor vehicle, with the remains of the seat belt fastened. The fire, it was later ascertained, had been propagated by petrol spread around the passenger cabin of the vehicle, notably in the vicinity of the front seat.

3 Wadie Saad was born in Egypt on 5 August 1955. He was 45 at the time of his death. He migrated to Australia in the mid 1980s, sponsored by his brother-in-law Samir Ghobrial. Shortly thereafter he obtained employment with Telecom, the predecessor of Telstra, as a technical officer. He was still employed by Telstra at the date of his death.

4 The evidence which was given upon your trial established that the deceased was an honest, hardworking family man who enjoyed his employment and was well liked by his work colleagues. One of them described him as a committed, conscientious employee who was one of the best in their particular team.

5 Wadie Saad returned to Egypt in 1989 where, by family and church arrangement, he met you, Mary. You were married on 13 July of that year. You both returned to Australia and made your home in St Albans where you had two children, Kirrellos and Christina.

6 A number of Wadie Saad's siblings also migrated to Australia and settled in the St Albans area so that, at the time of his death, there were a number of related families living no more than a few blocks from each other. When you, Hany, came to Australia in 1999 you initially lived with your older sister and her husband but subsequently moved into the home of the deceased and your co-offender and their children at 27 Willow Avenue. The deceased was very good to you. He assisted you to establish yourself in this country by extending financial assistance to you and providing you not only with a home but also with the necessities of life. You were able, because of Wadie Saad's assistance, to become a full-time student at a business college whilst working part-time with your co-offender Mary as a cleaner in city office buildings.

7 At some time after you, Hany, began living at 27 Willow Avenue a sexual relationship commenced between the two of you. By November 2000 you, Mary, were pregnant. Although you maintained that the deceased was the father of the child you were carrying, DNA testing carried out after the deceased's death on material retained by Sunshine Hospital from the foetus which you had had aborted on 17 November 2000 established that you, Hany, were the father.

8 Early in December 2000, you, Mary, attended an Arabic-speaking general practitioner, Dr Zaky, whom you had attended before, in an emotional state. You told her that you felt guilty about terminating the pregnancy. In subsequent visits you told her that you were unhappy in your marriage to the deceased. In January 2001 you sought further medical treatment and in the days leading up to the death of your husband you obtained a number of prescriptions for sleeping tablets from Dr Zaky. You told her that you were having trouble sleeping and, in particular, wanted to be already asleep when your husband came to bed at night. Specifically, you asked Dr Zaky whether she could give you something you could inject at home because you thought that some of the tablets she had prescribed for you were not effective. When she told you that she could not prescribe any such drug you asked her for Temazapam in capsule form which she then prescribed for you.

9 On 17 February 2001, a Saturday, the deceased went to work at a Telstra office in the city. He returned at about 4.30 pm. After going out to visit some friends he returned home and ate an evening meal with both of you, his mother and his two children at about 10.30pm. That meal was prepared by you, Mary. Although some of it was served in a common dish with each person serving himself or herself there were also drinks, including fruit juice, served in individual cups or glasses. It is clear on the evidence that over a considerable period of time during or after that meal each of you had the opportunity of administering the drugs, including the Temazapam, which were later found to be in the deceased's body at the time he died.

10 After dinner, you Mary, so you later told the police, complained of abdominal pain. You said that your husband insisted on taking you to the Sunshine Hospital in the early hours of Sunday morning, although you maintained that you were reluctant to go. Both of you told police that the deceased drove both of you to the hospital where you, Mary, were first seen by a triage nurse at 1.08 am. You both told the police that Wadie then left to return home to get clothes for you, Mary, should you require admission to hospital. Whatever the truth is as to Wadie Saad's movements between finishing his evening meal late on Saturday night and your discharge from the Sunshine Hospital at about 2.40am on Sunday morning it is clear that by that time he was dead, having been incinerated in his car near the hospital about an hour earlier.

11 You each told the police that upon the completion of your, Mary's, treatment you tried to phone 27 Willow Avenue to ascertain Wadie's whereabouts, but telephone records which were before the jury demonstrate that no such calls were made, save that a call was made to Wadie's brother, Ibrahim, who subsequently collected both of you from the hospital.

12 You, Hany, also told police that for a considerable period of the time that Mary was at the hospital you were asleep on a chair in a corridor outside the cubicle in which she was being treated. However, hospital staff who had seen you during that time described you as pacing up and down and showing signs of agitation. In fact, as the jury found by its verdict, you had left the hospital for some unknown period at about 1.30 am and set fire to Wadie Saad's car with him seated in it, sedated by a quantity of narcotic drugs, including Temazapam, which had been administered to him earlier in the evening in accordance with an agreement between the two of you to kill him which was still on foot.

13 Although both of you showed appropriate emotional responses upon being confronted with Wadie's death, in the days immediately following, you Mary, telephoned your general practitioner a number of times inquiring as to whether the police had sought and obtained copies of your medical records from her. In particular, you requested Dr Zaky not to give the police those parts of your medical record which recorded the prescriptions for the narcotics she had written for you in the days immediately before your husband's death. It is significant that at the time you made these requests no one knew that pathology tests on your husband's body, which were not then complete, would eventually show that he had ingested a quantity of drugs including Temazapam in the period before he died. Your conduct in approaching Dr Zaky betrayed your knowledge of this otherwise unknown fact and might well have been a significant factor in the jury's acceptance of the Crown case.

14 Upon your trial you both maintained that the deceased's death was due to his taking his own life by pouring petrol on himself after taking the sleeping tablets already referred to. His motives for doing so, you said, ranged from unhappiness at his having missed out on a relatively minor work promotion to his finding out about your illicit relationship to unhappiness caused by financial demands made upon him by his extended family. The evidence as to the possibility of Wadie Saad having taken his own life was slim indeed and that possibility was, accordingly, rejected by the jury.

15 The evidence of the pathologist who conducted a post mortem examination on the deceased was to the effect that he was alive at the time his car caught fire and that it was the fire which killed him although his state of consciousness at the time it commenced is somewhat uncertain. It is to be hoped that the drugs which he had ingested in some way diminished what would otherwise have been the excruciating pain of incineration in a fire accelerated by the use of petrol. The two of you chose an horrendous method indeed to carry out this wicked crime.

16 There are no victim impact statements in this case. This is not surprising. The most immediate secondary victims of this horrible crime are, of course, your children, Mary Saad. By reason of your criminal conduct they have no father and, as a consequence of the sentence I am about to impose, will be separated from you for a very long time. Their anguish can only be imagined even if it has been alleviated, to some extent, in the immediate past, by the exemplary charity of Mr Gilbert Tabban who, with his wife, has cared for them whilst you have been in prison. His generosity has, it would seem, enabled them to be cared for in circumstances where they have been able to have some contact with you. However, at the time of your plea hearing, no decision had been taken as to whether the children would remain in Australia or, as seemed more likely, would return to Egypt. Whichever situation has been or will be chosen for them their loss is immense and continuing.

17 The case which you both presented at your trial, namely a denial of your involvement in Wadie Saad's death, necessarily means that there is no evidence before the Court of any remorse on the part of either of you. Whilst this does not mean that either or both of you may not, in your innermost hearts, harbour a genuine regret for what you have done, if such a sentiment exists the lack of evidence of it means that it cannot be taken into account in mitigation of any otherwise just sentence which must be imposed on you. You must be sentenced as the cold blooded murderers the jury found you to be. This is not to say, of course, that your personal circumstances are not relevant to the sentence I must impose. They are, and, accordingly, I now turn to deal with them in respect of each of you separately.

18 You are 36 years of age. Your counsel detailed a number of matters in the course of his submissions as to your early life and education. None of these matters has been challenged by the Crown and, accordingly, I am prepared to accept them.

19 You were born in Egypt, the youngest of nine children. Your father is dead and your mother now lives in Australia, having migrated here some years ago. You completed your secondary education in Egypt and acquired a diploma in mechanical engineering before spending a compulsory two years and two months in the Egyptian Army.

20 In 1997 you married and now have two small children. Your wife and your elder child came to Australia after you killed your brother but before you were arrested and charged. She had your second child in Australia and remained here until your committal for trial in February of this year when she returned to Egypt permanently with the children. You have not seen them and have had virtually no contact with them since that time.

21 Your counsel has informed the Court that it is unlikely that you will have any contact with your children or your wife during the time you are in custody. Whilst this is unfortunate it is a direct result of the crime which you committed. That, together with your indifferent English, your counsel submits, will make your time in prison somewhat more difficult and harder to bear than would a similar sentence imposed upon an English speaking Australian whose family was still living here. I accept this submission and give it due weight in fixing an appropriate sentence; particularly in respect of the minimum term which I intend to fix.

22 In the course of your plea hearing there was some discussion as to whether you might be deported to Egypt either during or after completing your sentence and whether you might be able to take the benefit of Commonwealth legislation relating to the repatriation of foreign prisoners. Both of these matters raise questions of executive action by federal authorities. Any decision in respect of them which might subsequently be made is irrelevant to the task I must perform.

23 You have no prior convictions and the Crown has put nothing to your discredit before the Court. Accordingly you will be sentenced, as are most murderers, as a person who has never been in trouble before and in respect of whom there is no reason to believe will offend in this way again.

24 In fixing a sentence in your case I am required to take into account the matters set out in s 5(1) of the Sentencing Act 1991.

25 You must be punished for the crime which you have committed. The evil of your conduct has been fully exposed in the course of your trial and is briefly summarised in the facts to which I have already referred. The community demands that your sentence reflect punishment for that evil. It will do so.

26 The sentence imposed upon you must deter you from any further offences of a like nature and provide a means of rehabilitation. As I have indicated these considerations are probably of minor importance in your case. Experience shows that murderers of your type seldom offend again and can generally be regarded as rehabilitated in that sense at the end of a long period of incarceration. More important is the requirement that your sentence act as a deterrent to others who might seek to resolve relationship problems by removing permanently the obstacle to the fulfilment of their desires.

27 Finally the Court must express the community's denunciation of this most wicked of crimes. Your sentence will express that denunciation.

28 You are 38 years of age. You were married to Wadie when you were 24. You have no particular work skills and failed to successfully complete your secondary education. In this country you have worked as an office cleaner. Your principal function in the family was as a homemaker. You provided the primary care for your two children and looked after the household which included not only your immediate family and your co-offender but also your mother-in-law from time to time. Your health has been indifferent although it seems surgical treatment has recently reduced your susceptibility to recurrent urinary tract infections to which you were prone. You still have cardiac problems and at the time of your plea hearing you were awaiting investigation of a lump in your breast.

29 If your children have returned to Egypt or do so in the near future, you, like your co-offender, will be deprived of such consolation as you might have derived in prison by having your family near. Although your English is probably better than Hany's, you also will experience added difficulty in prison by reason of cultural and language differences although these may well diminish with the passing years. This disadvantage, relevant to your serving your sentence, entitles you to the same consideration as will be extended to your co-offender.

30 Your counsel described your relationship with Hany, your brother-in-law, as inducing a state of infatuation which overcame reason. Whilst this may provide some explanation of your actions, it in no way excuses them. This was not a crime of passion committed on the spur of the moment. It was a carefully calculated, premeditated, cold-blooded murder.

31 Each of the sentencing considerations which I have already outlined with respect to your brother-in-law apply equally with similar force to the sentence I must impose upon you. Taking into account all of those considerations and all of the other relevant circumstances I am unable to draw any valid distinction between you. You will each receive the same sentence.

32 It is the sentence of the Court that each of you be imprisoned for a period of 21 years. It is further ordered that each of you serve a minimum of 16 years imprisonment before being eligible for parole.

33 In your case Hany Saad there will be a declaration that the period of pre-sentence detention which you have already served is 525 days. I direct that this declaration and its effect be entered in the records of the Court.

34 In your case Mary Saad there will be a similar declaration that the period of pre-sentence detention which you have already served is 310 days. I direct that this declaration and its effect be entered in the records of the Court.