R v Talj [2003] VSCA 87

Court of Appeal (Vic)|2003-07-02|Before: WINNEKE, P., CHERNOV, J.A. and WARREN, A.J.A.

Appeal against Sentence - Manslaughter - Whether motive ascribed to appellant by trial judge not open on evidence - Aggravating factor - Whether sentence manifestly excessive.

I agree, for the reasons given by Warren, A.J.A. that this appeal should be dismissed.

If it were established that the sentence was manifestly excessive, it might be said that the matters in grounds 1, 3, 4 and 5, or some of them, are reasons why the sentence was wholly inappropriate. But, as Warren, A.J.A. has shown, the sentence is not manifestly excessive. The offence of manslaughter is obviously a serious offence and the offending by the appellant involved a high degree of criminality on her part. She intended that the deceased be assaulted and took part in the planning of that event. Moreover, she lured the deceased into the trap and was able to do so with ease only because the deceased trusted her close friend. Given those matters, the applicable sentencing principles, and the relevant mitigating circumstances, to all of which the learned sentencing judge had proper regard, the head sentence and the non-parole period are within a range that was properly available to his Honour.

The appellant, Mireille Talj, pleaded guilty to the manslaughter of Victoria Skidmore at Doncaster on 23 August 2000. She was convicted and sentenced on 27 September 2001 to a term of imprisonment of seven years with a non-parole period fixed at five years. The sentencing judge declared a period of pre-sentence detention of 367 days. The appellant appeals against the sentence.

At the time of the offence, the appellant was 19, the deceased was 18. The two young women had formed a friendship at the private girls' school they both attended in their previous years. A close friendship continued thereafter. The circumstances of the death of the deceased revolved around a relationship she formed with one Sargon Younan in about April 2000 when the two met at a nightclub. He was aged 25 years and nine months at the time. In July 2000 the deceased and Sargon Younan broke up and then resumed the relationship a little later. By 3 August 2000 the deceased broke off the relationship completely. In the periods of break up Sargon Younan constantly pursued the deceased, including assaulting her in July 2000. Matters reached the point between the two such that in July 2000 the deceased took initial steps to obtain an interim intervention order against Sargon Younan. Ultimately, and tragically, an order was not applied for by the deceased. A number of witnesses gave evidence before the sentencing judge of the pursuing and harassing behaviour by Sargon Younan of the deceased during the periods of break up.

The appellant knew Sargon Younan and, also, his younger brother, Michael Younan, who was aged 18 and a half years at the time. The sentencing judge described the relationship between the appellant and Sargon Younan as one that was close. About one week before the death of the deceased, the appellant met with Sargon Younan and Michael Younan and another man. The meeting occurred at a restaurant owned by the appellant's parents at Balwyn. The group sat in a car outside the restaurant. Sargon Younan indicated that he wanted to inflict a beating on the deceased. The appellant undertook to take the deceased out one night, to contact Sargon Younan and Michael Younan and then take the deceased to meet them where she would be beaten up by them. His Honour found that the expectation of the appellant was that the deceased would be assaulted but that Sargon Younan had a different intention, namely, to kill the deceased. The sentencing judge described the appellant as "a willing party from the outset". There were a total of three or four meetings and some phone calls during which arrangements for the beating of the deceased were discussed between the appellant, Sargon Younan and Michael Younan. On 22 August 2000 the appellant, Sargon Younan and Michael Younan met again at the restaurant to discuss their plan. Among other matters, Sargon Younan wrote out a note that was found beside the deceased. It read:

"This is pay back for insulting the Muslim religion and holy Koran, Allah Akbah. Also for the drug money you owed us."

The reference to the Muslim religion and drugs was found by the judge to be a fabrication to disguise the intended crime. Both the Younan men were of Christian background. As the judge said, the note was "a deliberate and cynical attempt by [the appellant] to avoid detection by deflecting blame falsely onto Muslims".

On the night of 22 August 2000, the plan was set in motion for the beating. The appellant telephoned the deceased at about 8.45 p.m. and said that after she, the appellant, finished work she would take the deceased out. The deceased agreed. The appellant then immediately telephoned Sargon Younan. The actions of the appellant, Sargon Younan and Michael Younan thereafter were described by the sentencing judge as a "military operation".

The arrangement was that the appellant would drive her car, with the deceased as a passenger, and that unbeknown to the deceased, Sargon Younan and Michael Younan would follow. It was agreed that the appellant would communicate with Sargon Younan and Michael Younan by sending signals with her car lights. She was also to maintain contact through her mobile telephone by sending signals, text messages and speaking directly. Sargon Younan had obtained a weapon described by the sentencing judge as a "large hard length of wooden shovel handle" for the purpose of the planned beating.

The appellant drove at about 10.00 p.m. on 22 August 2000 to collect the deceased from a street near her home at Blackburn where she lived with her parents and family. Sargon Younan and Michael Younan followed in a separate vehicle in accordance with the plan. The appellant drove the deceased to Russell Street, Melbourne for the purpose of buying some heroin. The two men followed in their car. The appellant kept Sargon Younan and Michael Younan informed of her movements as she drove to Russell Street. The appellant conveyed signals to the two men from the lights of her car, sent text messages on her mobile telephone and, surreptitiously, made telephone calls to them from convenience stores on route. At some point on the way into the city the deceased suspected that Sargon Younan was following. She telephoned him by mobile telephone, abused him and told him to stop following her. Nevertheless, during the journey into the city, the appellant received calls on her mobile telephone from Michael Younan but told the deceased they were calls by someone else. Upon arriving at Russell Street the deceased purchased a small quantity of heroin. The appellant and the deceased then travelled to a convenience store in Fitzroy. The appellant sent Sargon Younan and Michael Younan a text message on her mobile telephone as to her whereabouts. The appellant and the deceased then decided to travel out to the Westfield shopping centre at Doncaster. Again the appellant kept Sargon Younan and Michael Younan informed as to where she was heading. The sentencing judge found that the deceased believed that the purpose of the drive to Doncaster was to consume the small amount of heroin that had been purchased.

When the two women were travelling between Fitzroy and Doncaster, Sargon Younan and Michael Younan spoke to the deceased by mobile telephone more than once. Arguments ensued. The appellant and the deceased arrived at the shopping centre after midnight. They sat in the appellant's parked car in an underground car park. The appellant informed Sargon Younan and Michael Younan where she was parked. By this time the deceased had become suspicious. At one point she saw the car with Sargon Younan and Michael Younan. The two men telephoned the deceased and tried to speak to her. The appellant and the deceased stayed parked in the appellant's car and started to smoke the heroin purchased earlier in the city. It was then approximately 12.45 a.m. on 23 August.

Sargon Younan and Michael Younan pulled up beside them in their car in the car park and asked the deceased to get out so they could talk to her. Initially she refused but then got out of the appellant's car. Sargon Younan started to beat her and Michael Younan kicked her. The sentencing judge described Sargon Younan as the principal perpetrator of the beating. Sargon Younan then took the shovel pole he had with him in his car and started to hit the deceased whilst she was lying on the ground. The appellant watched the beating and then began to scream. The sentencing judge found neither the appellant nor Michael Younan did anything effective to defend the deceased. The attack stopped and the note referring to Muslims and drugs was dropped beside the body of the deceased. Sargon Younan and Michael Younan returned to their car and drove off leaving the deceased in a pool of blood. They had with them the deceased's mobile telephone. The appellant called out to the deceased to see if she would respond. She did not. The appellant drove away, but later returned and obtained the assistance of a security guard at the shopping centre. She and the guard returned to the deceased who was unconscious. An ambulance was called. During this time the appellant tried to telephone Sargon Younan but his telephone was turned off. She did not speak to Sargon Younan or Michael Younan thereafter. The Younans had driven home to Craigieburn where they disposed of the wooden pole, the deceased's mobile phone and the texta pen used to write the "Muslim note".

The deceased died on 23 August 2000 at Box Hill Hospital at about 10.30 a.m. without regaining consciousness. The forensic pathologist gave evidence that the deceased died from head injuries. He described extensive blunt trauma to the head, upper limbs and back of the deceased. He observed a total of 24 separate impacts together with comminuted fractures of the bones of the cranial vault of the skull, multiple complex facial fractures, brain swelling with cerebral contusions and lacerations and other grave injuries to the deceased. The sentencing judge accepted that the degree of force required to produce such injuries was severe. The deceased was also observed by the pathologist to have injuries to her forearms and hands being indicative of defensive injuries.

When the appellant initially spoke to the police at the scene a police officer mistakenly believed the deceased was a male as a result of the extent of the injuries to her. The appellant corrected the mistake and informed the police that the victim was a female and that the perpetrators were two men in balaclavas who had driven off. When the police asked if the appellant knew the identity of the attackers or anything about their car she said she did not know and made statements to mislead the police. The statements by the appellant referred to Muslims as being the attackers. The sentencing judge found that the appellant made these statements when standing beside the deceased and regarded the statements as the adoption and promotion of the plan of Sargon Younan. In another exchange with the police shortly thereafter the appellant told the police more things about the attackers that the sentencing judge found to be untruthful. Those matters included references to Muslims, once again, and a male who was said by the appellant to have threatened in the past to kill the deceased and to live in the Broadmeadows area.

Eventually the appellant informed the police of the full circumstances of the attack on the deceased including the details of the plan hatched with Sargon Younan and Michael Younan. Initially the appellant, Sargon Younan and Michael Younan were charged with murder. Later, after the committal hearing, the prosecution accepted pleas of manslaughter from the appellant and Michael Younan. Sargon Younan pleaded guilty to murder. The sentencing judge found that the plea of manslaughter by the appellant was accepted on the basis that she was a party to an agreement to assault the deceased, but with an intention to inflict injuries less than really serious injury and that the appellant was present for that limited purpose.

The sentencing judge heard pleas on behalf of each of the accused and sentenced the three of them together. Sargon Younan was sentenced to 19 years' imprisonment with a non-parole period of 16 years and Michael Younan was sentenced to five years' imprisonment with a non-parole period of three years.

For the purposes of the plea on behalf of the appellant the sentencing judge received reports and oral evidence from two psychologists and a psychiatrist. He also received other evidence in support of the plea. The sentencing judge found that the appellant had shown some remorse, had no prior convictions and suffered the burden of being in protective custody. His Honour observed that whilst the appellant was young she was in a different position from that of Michael Younan who was influenced by his older brother, Sargon Younan.

The sentencing judge found that the appellant had betrayed her friend, the deceased and used the trust that the deceased had in her to lure the deceased into the trap of the beating by Sargon Younan and Michael Younan. The sentencing judge found that the actions of the appellant were "central and vital", "planned" and "persistent".

During the course of the plea an issue arose as to whether the purpose of the appellant's actions in assisting Sargon Younan was to teach the deceased a lesson. The sentencing judge remarked in his reasons:

"However, I reject that your purpose that evening was a misguided notion of correction and education. Your purpose was not in order to persuade Ms Skidmore not to use drugs, because you were doing the very opposite; you were buying it with her and using it with her. It was not to knock some sense into her to avoid Sargon Younan, because you were doing the very opposite; you were encouraging and facilitating Sargon Younan pursuing her on that very night. Significantly, your lack of response and concern, in particular your continuing and promoting the plan to secure the escape of Sargon after the terrible assault on Ms Skidmore, unequivocally established that your purpose was not concern for Ms Skidmore. I consider your true motives were that you were currying favour with Sargon and that you were jealous of Ms Skimore. A dangerous combination."

Initially there were eight grounds of appeal although ground 2 (relating to parity in sentence) was abandoned. I deal with each of the grounds.

The first ground was that the sentencing judge failed to accord sufficient weight to the appellant's plea of guilty. It was submitted for the appellant that she pleaded guilty to the charge of manslaughter at the first opportunity available to her. This was not disputed by the Crown. However, it is to be observed that the Crown agreed not to proceed with the count of murder in relation to the appellant and that as a result she had the benefit of obvious advantages arising from that course[1]. It must also be observed that the circumstances of the offence constituted a very serious example of manslaughter, arguably falling just short of murder. Indeed, the conduct of the appellant, involving as it did the elements of betrayal and the luring of the deceased into a violent trap, was extremely disturbing. Hence, the role played by the appellant in the attack on the deceased called for assessment in that light. When these matters are weighed up I cannot be satisfied that the factor of the plea of guilty by the appellant was not given proper consideration. I do not consider that the first ground is made out.

Ground 2 having been abandoned I turn to grounds 3, 4 and 5 which were interconnected. Ground 3 was failure to accord weight to the age of the appellant; ground 4 was failure to accord weight to the appellant's prospects of rehabilitation; and ground 5 was failure to accord weight to the psychological and psychiatric evidence relating to the appellant. The sentencing judge gave consideration to the matters of the age, rehabilitation prospects and, in particular, considered at length the psychological and psychiatric evidence. Examination of the sentencing remarks reveals that all these matters were considered. Furthermore, these factors were considered by his Honour in the context of a very serious example of manslaughter. Whilst consideration, indeed special regard, is allocated to youthful offenders, the nature of the conduct of the offender and the crime committed are of greater importance.[2] I do not consider that grounds 3, 4 and 5 are made out.

The principal focus of the appeal in both written submissions and argument by Mr Holdenson for the appellant was ground 6. The ground was that there was error in the finding by the sentencing judge that the appellant's "true motives were that [she was] currying favour with Sargon [Younan] and that [she was] jealous of [the victim]".

I have already set out the relevant remarks.[3] It was submitted that the remarks by the sentencing judge constituted a finding that was not open as the matters were not opened or put by the Crown, that the appellant made no statement to that effect in her records of interview and that there was no evidence to this effect in the depositions. Consequently, it was submitted, the sentencing judge attributed a motive to the appellant which was non-existent.[4]

I reject the submission. Examination of the record of interview reveals that the appellant made a number of statements to the effect that she wished to satisfy and co-operate with Sargon Younan and that she was jealous of the deceased. The records of interview of the appellant were replete with references by her to the deceased that bore out the findings of "currying favour" and of "jealousy". When asked by the police why she wanted the deceased bashed, the appellant gave a number of reasons. They included that she had tried helping the deceased but she, the deceased, had got the appellant into trouble; the deceased did not support the appellant, rather, used her up including for the purpose of boys that the appellant knew; the deceased misbehaved with boys which gave the appellant a bad reputation with those boys; the deceased was a "snob" and a "bitch"; and so the catalogue of criticisms went. The appellant said in her interviews that Sargon Younan told her the deceased was "backstabbing" her. She said that she thought Sargon Younan was a "good guy". The evidence before the sentencing judge can be readily characterised as descriptive of behaviour of the appellant that she was "currying favour" with Sargon Younan. Furthermore, there was clear evidence that the appellant was jealous or envious of the deceased in various ways. The Director, Mr Coghlan who appeared with Mr Southey submitted that as the relationship between the appellant and the deceased was one of "best friends" it was open to the sentencing judge to say that the conduct of the appellant revealed a type of animus towards the deceased which was open to be described as jealousy.

Mr Holdenson for the appellant engaged in a semantic and syntactic analysis of the remarks of the sentencing judge and submitted those remarks, in part, to tortuous criticism. I have considered the remarks of the sentencing judge very carefully. I do not consider that the criticisms are made out. It remains that the findings were open to the judge on the basis of the evidence before him on the plea. In any event, the findings of the sentencing judge regarding "currying favour" and "jealousy" amounted to no more than a summary of the events revealed by the evidence. Furthermore, the findings did not lie at the heart of the matter. The significant, and quite appropriate finding, was the betrayal perpetrated by the appellant and which finding came at the end of the relevant section of his Honour's remarks.

It was also submitted on behalf of the appellant that the finding of the sentencing judge as to "currying favour" with Sargon Younan and the "jealousy" by the appellant towards the deceased were matters of aggravation in the sentence. I reject such submission. As Mr Coghlan put the matter, the question of increased moral culpability of the appellant turned not on motive but on the betrayal of trust. Indeed, the sentencing judge referred to that betrayal more than once. I am satisfied that the finding was open to the judge and that ground 6 is not made out.

The remaining grounds, grounds 7 and 8, asserted manifest excess in relation to the sentence of imprisonment and the non-parole period fixed by the sentencing judge. I do not consider the grounds are made out. As submitted by Mr Coghlan, the charge of murder was a realistic possibility in the context of this case. It was, as I observed already, a very serious example of manslaughter. There were a number of factors that placed the offence at the upper end of the offence of manslaughter because of the betrayal of the deceased by the appellant notwithstanding other factors that operated in her favour such as her age, prospects of rehabilitation and the psychological factors before the sentencing judge. Furthermore, the offence of manslaughter is one that carries a maximum penalty of 20 years' imprisonment. In addition, there were the victim impact statements made by the family of the deceased that contributed to the overall context before the sentencing judge. When weighing up the question of a just punishment the sentence in the circumstances was an appropriate one. So far as the non-parole period is concerned, in my view it is unremarkable when regard is had to the seriousness of the manslaughter involved. I do not consider that the remaining grounds are made out.

It follows that I consider that the appeal should be dismissed.

[1] cf. R. v. Lennon [2001] VSCA 233.

[2] R. v. P.D.J. [2002] VSCA 211 [82]-[83]; Director of Public Prosecutions v. S.J.K. and G.A.S. [2002] VSCA 131 [61], [64]-[66]; Director of Public Prosecutions v. Heblos (2000) 117 A.Crim.R. 40 [27].

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