R v SJK and GAS [2002] VSC 94

5. At the time of her death Marie Zidan was a frail invalid pensioner. She suffered from diabetes. She had osteo-arthritis of the hip and knee. Her mobility was restricted and she walked with the assistance of a walking frame. She and her son relied upon outside attendant carers to help look after them and the house in which they lived. A number of victim impact statements filed by members of Mrs Zidan's family attest to the regard in which she was held by her friends and family and the devastating loss which has been suffered by them as a result of her death.

8. It was one of the carers who looked after Mrs Zidan and her son who found her body in her ransacked bedroom. When she was found she was lying on her right side, on the floor at the side of her bed. Her face was bloodied and it was obvious that she had been beaten around the head. She was wearing a petticoat, short sleeved top and a windcheater. The windcheater had been pulled over her head. Her arms were still in the sleeves. She was partly covered with a doona. Small household items covered the deceased and a large number of items were scattered around the bedroom floor. Her mattress had been upturned. A blood stained cushion was located at the foot of the bed.

11. Subsequent autopsy revealed that Mrs Zidan had died as a result of asphyxia caused by manual neck compression or choking and that she had multiple areas of blunt trauma to her head, chest, back and pubic region. The pathologist who conducted the autopsy could not rule out that she was smothered. An open jar of a medicinal preparation called Magnaplasm was found on top of her pubic area. Mrs Zidan suffered three fractured ribs and a symmetrical pattern of bruising over the anterior chest wall. These injuries were consistent with someone having knelt on her chest.

14. At the time Mrs Zidan was found, a sliding door at the front of her house was open thus giving access to the house from the front porch. At the rear another sliding door, which gave access to the back porch, was also open.

17. Whatever might have been the precise circumstances surrounding Mrs Zidan's death it is clear that before she died she was subjected to considerable violence and was sexually assaulted. The areas of blunt trauma noted by the pathologist were, in his opinion, likely to have been caused by a fist and the bruising in the pubic area was consistent with an assault with a hand.

20. Although Mrs Zidan's son Peter suffered from a significant mental disability he enjoyed shopping at the local supermarket. He not only went there during the day but sometimes very late at night. When he did this he not infrequently left the front door of the house open. Thus the house was usually open during the day and often at night, a fact widely known among friends and associates of the deceased and her son.

23. Two days before her body was found, on Saturday 14 October 2000, Mrs Zidan had awoken to the discovery that her handbag had been stolen from the side of her bed during the night. It contained a quantity of cash in $5 and $10 notes. She notified the police. Later that morning a man walking his dog found the missing handbag discarded at the Seaford oval reserve. Although its contents had been scattered about, all that was missing from the handbag was the cash which had been in it.

26. The police investigation of Mrs Zidan's death eventually led to you, SJK and GAS.

29. You, SJK, were interviewed at the Frankston police station at about 9 o'clock on Tuesday 17 October. You told police that you had no knowledge of the circumstances of the death of Marie Zidan or the earlier theft of her handbag. You said that on the night of Sunday 15 October you had been at home from about 8.30 pm and that you had gone to bed at 10.30 or 11.00. You said you had slept until 9 or 10 o'clock on the Monday morning. You denied any wrongdoing whatsoever.

32. In the course of that interview you told police that you knew Marie Zidan's grandson, Joel, and you were a friend of GAS. You denied using drugs such as marijuana, speed or heroin but said that you drank alcohol and that you engaged in paint sniffing or "chroming"; that is to say inhaling the volatile components of paint sprayed into a plastic bag, to intoxicating effect.

35. This police interview concluded at about 10.15 p.m. and you left the police station.

38. A short time later, at about 12.45 am the following morning 17 October, you returned to the Frankston police station voluntarily, with your father. You told police that you had returned because you wanted to tell them what had really happened. You then proceeded to tell the investigating officers that you had in fact stolen the deceased's handbag on the Saturday morning and that you had returned to her house on the Sunday evening for the purpose of stealing more money. You said that on both occasions you were with GAS. You told police that you had carried out the initial burglary with GAS because you knew that Marie Zidan was a heavy sleeper and that the door of her house was often open. You said that you took $540 in cash and discarded the handbag at the Seaford reserve. You said that you then caught a train with GAS to Cheltenham and later returned to Frankston where you and GAS each bought a mobile phone using the money stolen from the deceased.

41. In this second interview you also gave an account of your movements and activities on Sunday 15 October. You said that at about 10.00pm on that night you and GAS had returned to Marie Zidan's house for the purpose of stealing more money. You each had a skateboard. You knocked at Peter Greening's bedroom window, causing him to open the back door. You told police that he, Greening, then went back to bed. You said that Greening had called GAS "Joel"; perhaps mistaking him for his own nephew of that name.

44. You told police that you and GAS waited a short time before you both entered the house through the rear door. You said that GAS picked up a cushion as you both passed through the living room on your way to Mrs Zidan's bedroom to steal more money. When you were both in the bedroom you said that Mrs Zidan woke up and that GAS then jumped on her and covered her head with the cushion. You described GAS punching her numerous times about the head area and choking her. Your description of GAS's assault on Mrs Zidan was comprehensive, although it did not mention any sexual aspect of the attack. It was also significant in that it minimised your own involvement in the episode. You claim to have tried to stop GAS's assault and asserted that at no stage were you closer than 2½ or 3 metres from the deceased. This latter assertion is now known to be untrue as biological material found under the deceased's finger nails clearly establishes contact between you and her. This lie casts considerable doubt on the accuracy of the rest of your account as to what happened at the time Marie Zidan died; a situation which makes the already difficult sentencing process in this case even more difficult.

47. You told the police that after GAS had assaulted Mrs Zidan he pulled the mattress off her bed to search for money and that you both searched the rest of the bedroom and the kitchen before leaving the house with $10 to $15 in coins. You said that the two of you then took a taxi from the local Safeway supermarket to your respective homes.

50. You, GAS, were interviewed at the Frankston police station during the evening of Tuesday 17 October. You said you had had no involvement in or knowledge of the death of Marie Zidan or the theft of her handbag on the Saturday morning. You claimed not to have left your home between about 10.00 pm on the Friday night and 7.30 on the Saturday morning; a factual situation not corroborated by your mother who said that you were not at home at 11.15 pm on the Friday evening nor at 4.00 am on the Saturday morning. She said she had next seen you at about 2.00 pm on the Saturday afternoon.

53. In your interview with police you maintained that you learnt of the deceased's death from watching a television news bulletin on the morning of Monday 16 October at about 6.00 am prior to leaving for work. However, the body of the deceased was not found until about 9.30 am and there was no publicity about her death until later that day. Your account is, at least in this respect, a fabrication.

56. So far as Sunday 15 October is concerned you told police that from about 7.30 pm until about 1.30 am on the Monday morning you were with SJK and two of SJK's friends known to you only as "James" and "Jason". You also said that you were never at the Seaford railway station on Saturday 14 October with SJK but railway security video footage clearly proves that this was also a lie. Your mother told police that on 15 October you had left home at about 12.30 pm and did not return until some time between 1.30 am and 5.00 am on the following morning.

59. Your employer, Alex Main, told police that he picked you up from your home at about 6.45 am on the Monday morning to go to work and that during that day you had told him that you had robbed a lady. On the same day you said to a fellow worker: "We mugged a lady on the weekend".

62. Your lies, added to those told by SJK, mean that the Crown is unable to demonstrate the part played by each of you in the death of Marie Zidan. You, SJK, maintained after initial denials, that you were both present but the blame should all attach to GAS. You, GAS, denied that you were present at all, although you have subsequently told case workers preparing your pre sentence report that you were in fact present at the house but only as an observer.

65. You, SJK, have subsequently elaborated on your original story to the police in interviews with your case workers. In that elaboration you have sought to place the blame for virtually all of the criminal activity relating to Mrs Zidan on GAS. You also described to the case workers your and GAS's inhalation of paint or "chroming" both in the periods before and immediately after Mrs Zidan's death.

68. In your interview with your case workers you, GAS, changed your story considerably. You said that on Sunday 15 October you had gone to Mrs Zidan's house with SJK after discussing with him the likelihood of there being money in her bedroom. You told the case worker that SJK broke into the house through a window and that you went through the kitchen door but that you never went past the kitchen and never entered the bedroom. You said that SJK went into Mrs Zidan's bedroom and shut the door and that you were unaware of what went on whilst he was there. You said that you left the house before SJK and met him outside. You then caught a taxi together from Safeway at Seaford to your respective homes.

71. The significant and demonstrable lies which you have each told as to your involvement in this matter means that the Court is unable to determine the events surrounding Mrs Zidan's death and, more importantly, the part which each of you played in that event. Your plea of guilty to manslaughter means that each of you has now admitted that you killed Mrs Zidan by an unlawful act which was dangerous. My inability to discern any distinction in the role played by each of you with the necessary degree of satisfaction in circumstances where there may or may not have been such a distinction means that for sentencing purposes you must each be treated as bearing the culpability of no more than that of an aider and abetter, each of the other. It is on this basis that you will be sentenced.

74. I turn to consider the individual circumstances of each of you.

78. SJK, you were born on 1 September 1985 and are, accordingly, now 16 years of age. You have no prior convictions. At the time of this offence you were 15.

81. Apart from two years spent in Ballarat when you were a very small child you have lived most of your life in the Frankston area. You have two older brothers, both of whom have had extensive involvement with both the juvenile justice system and the adult criminal justice system. One of them has a mild intellectual disability. Your mother told case workers investigating your background that you have often struggled with the negative stigma attached to your surname due to the reputation of your brothers.

84. You are in apparently good health and have not suffered from any disorders or medical conditions in the past.

87. At about the age of 13 you began drinking; which drinking led to bouts of binge drinking every two or three weeks. Subsequently you commenced "chroming", or inhaling paint fumes, with a neighbour. You told case workers that this would give you a "buzz" for about five minutes each time you inhaled. You apparently ceased this behaviour when the neighbour with whom you had associated whilst chroming moved to Queensland.

90. You recommenced chroming with GAS when you ceased attending school which occurred some two weeks prior to the September 2000 school holidays when you were suspended indefinitely, due, it is said, to truancy and alleged involvement in a number of thefts of bicycles and a break in that occurred at the school. You told case workers that the day following the death of Mrs Zidan you inhaled three cans of paint; the most you had ever inhaled in one day. It helped you feel relaxed and calm.

93. You said that you experimented with cannabis at age 14 but, in the period immediately prior to this offence, rarely smoked. You said that you had smoked cannabis with GAS on about 3 separate occasions.

96. Since your incarceration in October 2000 you have seen a psychologist and have been subject to behavioural mood swings leading to self mutilation, although not of a serious degree.

99. Your schooling was spread over a number of primary schools and Karingal Park Secondary College where you commenced in 1999. Your mother chose this school as neither of your brothers had been there, thus maximising your chances of being given a "fair go". You were in year 7 in that year and were promoted to year 8 in 2000. Your mother believes that a transfer to that school of a teacher from a school which one of your brothers had once attended coincided with a deterioration in your behaviour. As I have already noted you were suspended in mid September 2000 and have not attended school since. You have expressed a wish to complete some education with a view perhaps to an apprenticeship in carpentry or cabinet making.

102. You were assessed by a clinical psychologist, Mr Bernard Healey, in May 2001 who determined that you were of average intelligence but that you suffered from mild depression, anxiety and a hypomanic trend. He considered you would have difficulty in developing depth and meaning in relationships and you had some persistent post traumatic stress, a not surprising finding having regard to your involvement in the death of Mrs Zidan in October 2000. Mr Healey considered that your mechanisms to deal with events in your life since the commencement of secondary schooling have been inadequate and since your incarceration you have been fearful by reason of threats from your co-offender and his associates.

105. In the course of his plea on your behalf your counsel pointed to the material to which I have referred and submitted that it demonstrates an acceptance on your part that you have committed a terrible crime so that I should find that you have expressed significant remorse in respect of the death of Mrs Zidan. This submission would have carried more weight had you not lied as to the circumstances of Mrs Zidan's death and not engaged, with GAS, in an event in January of this year in which you harassed Mrs Zidan's daughter; which event I describe later in these remarks. However you have pleaded guilty, which, in any event, I am required to take into account.

108. The crime of manslaughter carries a maximum penalty of 20 years imprisonment. You are to be sentenced as an aider and abettor in respect of that crime. You are accordingly, by statute, liable to be punished as a principal offender. However, current sentencing practices, to which I must also have regard, require that an aider and abettor should have imposed upon him or her a lesser penalty than that which would be imposed upon a principal offender. Account has been taken of this principle in the sentence which I am about to impose.

111. In sentencing you I am required to take into account your youth. Indeed, you are, for the purposes of the criminal law, still a child. That fact must be a primary consideration in determining a sentence to be imposed. Rehabilitation of someone as young as you is far more important in the sentencing process than any question of general deterrence. Your rehabilitation benefits not only yourself but also the community.

114. Further, I am required to consider whether I could impose a sentence which would avoid your being sent to an adult prison. However, as I have already stated (on 8 March 2002) you will in fact be sentenced to a term of imprisonment. Subject to the matters to which I will shortly refer and in respect of which this case was mentioned on 8 March, you will serve your sentence in an adult prison. The seriousness of the offence for which you are to be sentenced makes such a course imperative having regard to the governing principles which I am required to take into account. The brutality to which Mrs Zidan was subjected, which brutality included sexual assault, the fact that the crime was committed within the victim's own home and the base motive which apparently actuated you and your co-offender must put this offence in the most serious category of manslaughter cases. Although your personal circumstances may have rendered you eligible for a youth training order the maximum sentence which could be imposed if you were to be so sentenced would be three years. The Crown Prosecutor submitted that, notwithstanding your age, such a sentence would be manifestly inadequate having regard to the seriousness of the crime to which you have pleaded guilty. I agree with that submission.

118. GAS, you were born on 15 August 1984 and are, accordingly, now 17 years of age. At the time of this offence you were 16.

121. You are the third of five children of Mrs Dulcie Whatmore and the only child of your father. You have four half siblings, two older and two younger than you. Your mother's relationship with your father lasted only until you were five months old. Apart from a very short period after your parents separated you lived with your mother until you were approximately 13 years old at various addresses in Ballarat and Melbourne. In 1998 you went to Brisbane to live with your father who has always had a major role in your life, showing a strong interest in your upbringing and providing personal and financial support. You spent the majority of your school holidays with your father and have received intensive support from him when required.

124. You lived with your father and maternal grandmother in Brisbane for approximately five months and although you appeared to have behavioural problems at school your behaviour and attitude at home was said to be acceptable. Although you got along very well with your father and grandmother you missed your family and accordingly, in December 1998, you returned to your mother's care in Melbourne. All of these facts are derived from investigations carried out by case workers in preparing a pre sentence report in your case.

127. You were apparently diagnosed with sugar diabetes at a young age and placed on a special diet. Notwithstanding this you began drinking alcohol at about the age of 15 when you also began using inhalants and smoking marijuana. You told a case worker that you were inhaling approximately one can of paint per day from the time you commenced this habit. You have overdosed on inhalants on three occasions, the last time being in August 2000 when you were hospitalised. Notwithstanding this serious problem you have apparently received no drug or alcohol counselling nor received any other treatment for this condition.

130. Your educational history includes being expelled from Rosebud Secondary College for having been suspended on too many occasions for failing to attend classes and for being disruptive. You struggled academically from at least year 8 and were involved in property damage and fighting with other students. You finished your education at Karingal Park Secondary College where you completed year 9, but did not want to return to school to complete year 10 in the year 2000. In January of that year you commenced a bricklayer's apprenticeship with one Alex Main to whom I have already referred. You remained employed up until the date you were arrested for this offence.

133. The case workers who compiled the pre sentence report in your case have reported that since being on remand you have been the victim of physical and verbal assaults notwithstanding which you have engaged in useful educational activities and are anxious to continue your secondary education.

136. In October 2001 you were assessed by a forensic psychologist, Mr Ian Joblin and neuro-psychologists Mr Martin Jackson and Ms Kathryn Hoskin.

139. The neuro-psychologists regarded you as a 16 year old adolescent with a reported history of alcohol and substance abuse including chroming, possible learning difficulties and a mild head injury, apparently sustained in a fall at work in February 2000. They considered you to have had intellectual abilities in the low average to average range with reading skills well below average, consistent only with grade 3 of primary school. They thought you had poor sustained attention with some impairment of your immediate and working memory. Your initial approach to tasks was often impulsive and piecemeal but you demonstrated good planning and organisation when you were allowed sufficient time. They considered you had a mild disorder of impulse control. They recommended further assessment and counselling.

142. Mr Joblin reported your drug and alcohol abuse and your "chroming". He considered chroming to be of particular concern. He noted that you told him that prior to your incarceration you often carried a can of spray paint in your pocket and that inhalation would, at times, lead to hallucinations. He offered the opinion that solvent abuse can cause disturbances of consciousness from mild intoxication through to hallucinatory states and coma. Death has been reported from the inhalation of solvents as well as cardiac arrhythmia, brain damage, epilepsy, optic atrophy and liver and kidney damage. The habit is a serious health risk.

145. In the course of the plea in this case I requested the Crown to seek information concerning chroming from the Drugs and Crime Prevention Committee of the Victorian Parliament which has been conducting an inquiry into the inhalation of volatile substance. I did this to determine whether there was any reason to believe that your and your co-offender's indulgence in this dangerous practice may have had some bearing on the crime which you committed. In response to my request, in January 2002, the Crown provided me with a published discussion paper[1] produced by the Committee which was subsequently marked as an exhibit and made available to your counsel. In the event, although it contains important and informative data as to what volatile substances inhalation is and its effects, it notes that there is insufficient evidence or research to posit a firm nexus between inhalation of volatile substances and criminal or anti-social behaviour. Accordingly, I have not taken anything in it into account in fixing your sentences in this case.

148. You described this offence to Mr Joblin in terms which minimised your participation to that of a mere spectator. He considers that you avoid the debilitating anxiety associated with such awareness of the offence as you are prepared to admit by the unconscious mental process of denial. He thought that you demonstrated a conduct disorder of a socialised aggressive type. This is manifested in aggressive conduct and physical violence where the rights of others are violated as in thefts typically outside your own home. He was not convinced that chroming was responsible for the offence for which you are before this Court as you had demonstrated delinquent and aggressive behaviour before you began chroming. He considers that there are a host of psychological factors which may have been acting upon you at the time you committed this terrible offence.

151. In making a plea on your behalf your counsel called the Reverend Natalie Ann Dixon, a Chaplain at the Juvenile Justice Centre at Parkville. Ms Dixon has had a great deal of contact with you since you have been on remand. She accepts that so far as the chroming problem is concerned you are adamant that you will never indulge in this practice again. She considered that you would be suitable for a youth training order as, indeed, did the case workers charged with preparing your pre sentence report.

154. Mr Shwartz, in his plea on your behalf, urged me to accept that you have demonstrated some remorse in respect of Mrs Zidan's death. True it is you have entered a plea of guilty to manslaughter in this Court and that fact itself must be taken into account. However, the strength of his submission is somewhat diminished by the happening of the event to which I have already referred and which I shall described in detail shortly in which you and SJK harassed Mrs Zidan's daughter by telephone in January of this year.

157. As in the case of SJK the principal consideration to be taken into account in fixing a sentence is your youth and your prospects of rehabilitation. I must consider these above questions of deterrence and the other sentencing considerations which, although they remain relevant, play a somewhat lesser role. The difficulties in sentencing to which I have already referred are compounded here by the further difficulty of applying the paramount principle of rehabilitation in the case of a youthful offender whilst still giving adequate weight to the important consideration of denouncing a crime as horrendous as that in which you and SJK were involved. Such denunciation can only be effected by the imposition of a significant gaol term even if it is tempered by your age and the considerations that go with it.

161. In late January this year, whilst you were on remand, the Crown requested my associate to arrange to have this matter listed for further hearing at which the Crown would present evidence concerning telephone calls made, allegedly by both of you, to Mrs Zidan's daughter, Mrs Janine Bramley. I acceded to the Crown's request and listed this matter for further hearing on 25 February.

164. At this hearing the Crown prosecutor tendered two statements; one made by Janine Louise Bramley and the other by Joan Dodson, an acting unit manager at the Juvenile Justice Centre of which you were being held. There was no objection to the tender of these documents in support of a contention by the Crown that each of you demonstrated, by engaging in the matters to which the statements related, a distinct lack of remorse and/or a lack of appreciation of the seriousness of the crime to which you have pleaded guilty. The Crown submitted that these matters were relevant factors in the sentencing process.

167. Put shortly, the statements depose to the two of you having telephoned Mrs Zidan's daughter from the Juvenile Justice Centre upon which you were on remand, and singing a crude, offensive and distressing song. Mrs Bramley had not answered the telephone but an answering machine had recorded the event.

170. Upon being questioned by Ms Dodson, you each eventually admitted your involvement, in as much as you GAS admitted making the telephone call and you, SJK, admitted that the voice recorded on the answering machine was yours although you had disguised it in the hope that you would not be recognised.

173. I have already mentioned that each of you urges me to accept that you have demonstrated real remorse in respect of this crime, but that your failure to be truthful in at least some aspects of the matter render such submissions extremely difficult to accept. This conduct, however it is characterised, diminishes further the force of any argument for the existence of remorse as a mitigating factor in your case. Even if this phone call was not a deliberate attempt to harass Mrs Zidan's relatives, but was rather a thoughtless, tasteless and grossly immature prank, your protestations of contrition for having killed Mrs Zidan ring somewhat hollow. However that may be, of course, you are before this Court for what you did on 15 October 2000, not for conducted committed whilst you were awaiting sentence. As a matter of law you are entitled to have the fact that you pleaded guilty and the time at which that plea was entered taken into account as a mitigating factor or factors on your sentence. Whilst I accept that in the case of each of you your capacity for the expression of remorse may be somewhat diminished, having regard to the matters to which I have referred I am not prepared to find that either of you have demonstrated remorse in this case beyond whatever remorse is inherent in a plea of guilty.

176. Having determined that the only appropriate sentence in the case of each of you was one of immediate incarceration and that a youth training order was inappropriate I listed this matter for further mention on 8 March for the purpose of informing you of my intention to impose gaol sentences and indicating that I intended to have the material relating to each of you submitted on your plea sent to the Adult Parole Board to permit it to consider whether it ought, in the circumstances, to exercise the power conferred upon it by s 244 of the Children and Young Persons Act 1989 to transfer each of you to a youth training centre after this Court has sentenced you to a period of imprisonment.

179. Each of your counsel made no submission in opposition to the course which I proposed and accordingly the material to which I have referred has been sent to the Adult Parole Board. I have been informed that that Board will sit today to consider the question of transferring you from the adult prison to which I shall sentence you to a youth training centre. That decision is a decision for the Adult Parole Board as an arm of the executive government. I take no account of what course the Adult Parole Board may take in fixing the sentence which I am about to impose. It is not for this Court to interfere in the executive function. The steps I have taken were merely facultative: to enable the Board to exercise its power, if it chooses to do so, before you have to be incarcerated in an adult prison, with all the negative effects such a course would be likely to have upon you.

182. There being, in the circumstances of this case, no significant differences between you, either in respect of the crime for which you are being sentenced or in your personal circumstances, you will each be sentenced to 6 years imprisonment. It is further ordered that you each serve a minimum of 4 years before being eligible for parole. You have each been in custody since 19 October 2000. Accordingly I declare, pursuant to s 18 of the Sentencing Act 1991 that a period of 531 days be reckoned as a period of detention already served, by each of you, under this sentence and I direct that the fact that this declaration was made and its details be noted in the records of the Court.

[1] Inquiry into the Inhalation of Volatile Substances. Discussion Paper. Drugs and Crime Prevention Committee, Parliament of Victoria January 2002.