CRIME - sentence - murder - whether offence so grave as to warrant imposition of maximum prescribed penalty - discretion to impose determinate sentence - consideration of youth of offender
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CRIME - sentence - murder - whether offence so grave as to warrant imposition of maximum prescribed penalty - discretion to impose determinate sentence - consideration of youth of offender
Judgment (10 paragraphs)
[1]
Judgment
HER HONOUR: Aymen Terkmani has been found guilty by a jury of the murder and aggravated sexual assault of Mahmoud Hrouk. He now stands to be sentenced for those offences.
It is appropriate at the outset to warn that, of necessity, this judgment recites disturbing facts which some people may find distressing.
The maximum penalty for the offence of murder is imprisonment for life. [1] As the victim was a child under the age of 18 years, the offence carries a standard non-parole period of 25 years. [2] The maximum penalty for the offence of aggravated sexual assault is imprisonment for 20 years. [3] That offence carries a standard non-parole period of 10 years. [4]
[2]
Findings of fact
It is necessary to determine the factual basis on which the offender must be sentenced. That task is complicated by the fact that the offender has offered no explanation for the offences; his defence was alibi and he maintains his innocence. Accordingly, while much of the evidence at trial was not disputed, the precise circumstances of the offences remain a matter for inference based primarily on the victim's injuries and the state of the crime scene. The following summary sets out the principal findings of fact contended for by the Crown. [5] Subject to any qualifications expressly stated, I am satisfied of those matters beyond reasonable doubt.
The victim was aged 16 years at the time of the offences. The offender was aged 21 years. The precise nature of their relationship is unclear. They lived in the same suburb, East Fairfield, within a short distance of each other. One witness said the offender used to treat Mahmoud "like a little brother" and that they were "very, very close" [6] but that was probably an exaggeration. The victim worked long hours full-time; the offender was unemployed. There is little evidence as to anything much they had in common. Such friendship as they had appears to have been relatively recent.
The offences were committed in a vacant Housing Commission house in Belmore Street, East Fairfield. The house had been empty for about six months following the death of its elderly tenant. The offender had been on strict conditional bail for serious drug offences since June 2014 and was not supposed to leave his parents' home except in the company of a nominated adult. It is clear that he flouted that condition. The evidence at trial established that he went out alone on a number of occasions and was using the vacant house as if it were his own. He took a pool table there; smoked cannabis there one afternoon with a group of friends and once spent an evening with an escort there.
There was evidence in the trial that the victim had been to the vacant house with the offender at least once before the night he was killed. The victim told a workmate, Khodr Sleiman: "There's this Aymen guy who goes to this house, and he took him inside the house and it was dark inside the house, took him inside and started laying punches into him". [7] The victim told Mr Sleiman that they then went back outside and Aymen carried on as if nothing had happened. I am satisfied beyond reasonable doubt that this incident occurred at the vacant house in Belmore Street and that the "Aymen" referred to was the offender.
The victim, Mahmoud Hrouk, worked six days a week as a labourer. He was a good worker and his services were in high demand. He lived at home and gave his entire income to his parents save for a small allowance of spending money. On Saturday 16 May 2015, he went to work as usual, leaving early in the morning with one of his uncles. They worked until mid-afternoon. The victim returned home and worked for several more hours with his father installing roof racks on a car. They had planned to join the family for an early evening meal with relatives, but the work on the car meant that they were running late. The victim's father invited him for a meal at a local chicken shop, but the victim said he would get McDonald's. He took his bicycle. He was expected home by about 7:30pm when the rest of the family would be home.
At around 5pm, the offender went to visit his friends the Abdul-Rahman brothers in Landon Street, East Fairfield. He was in breach of his bail conditions in doing so, since he was not in the company of one of the nominated adults. The fact that the offences were committed whilst the offender was on bail is an aggravating factor. [8]
The victim had been in telephone contact with the offender during the afternoon. He joined the offender at the Abdul-Rahmans' house at around 6pm, riding there on his bicycle. He had his black satchel, two mobile phones, his asthma puffer and $300 in cash given to him by his father earlier that afternoon. [9]
The victim and the offender borrowed a car from one of the Abdul-Rahman brothers and went to McDonald's, where the victim bought them both a meal. They then returned to the house at Landon Street.
At around 7:30pm, the victim and the offender left Landon Street and went to the offender's home at 54 Mitchell Street, Fairfield East. At some point before 9:40pm, they left there and went to the vacant house in Belmore Street. The victim left his bicycle outside the offender's house.
The Crown seeks a finding that the victim consumed ecstasy (MDMA [10] ) that day and that it was the offender who supplied it to him. I am satisfied that the victim consumed ecstasy while he was with the offender. Ecstasy and one of its metabolites, MDA, [11] were detected in post mortem blood samples taken from the victim. The forensic pathologist, Dr Brouwer, gave evidence that she considered it likely that the ecstasy was ingested by the victim sometime on the day of his death. The possibility that he consumed ecstasy before he met up with the offender can be dismissed, in my view.
However, while it is possible and even likely that the ecstasy was supplied by the offender, I do not think I can be satisfied of that fact beyond reasonable doubt. The Crown relied on the offender's extensive prior involvement with illicit drugs. There is ample evidence of that. He has now pleaded guilty to and been sentenced for the drug offences for which he was on bail, which involved approximately 50 separate supplies of methylamphetamine (ice) to various people in late 2013 as well as one charge of supplying cocaine. In an interview with a psychologist in April 2016 for the purpose of the sentencing proceedings in the drug matters, he admitted that, up until his arrest for the murder, he had been consuming up to 3.5 grams of cocaine every one or two weeks. There was unchallenged evidence at the trial that, in the weeks prior to the murder, the offender had supplied cannabis to several persons in the Belmore Street house, two of whom were girls aged 15 years. The offender's DNA was found on a bong located at that house. Ultimately, however, there is a want of evidence concerning the ecstasy. The reasonable possibility that the victim obtained it from someone else cannot be excluded.
There was evidence that the victim had previously used other drugs. Post mortem testing detected cannabinoids, but it was not possible to say how recently cannabis had been used. Hair analysis suggested that the victim had also recently used cocaine, but not in the few days before his death. Cocaine is the drug the offender now admits using extensively in the period leading up to his arrest. The victim's use of drugs was completely unknown to his family and close friends. In a statement to police, the offender stated that he had never seen the victim use drugs and appeared to suggest that he (the offender) disapproved of the use of drugs. I am satisfied that the statement was dishonest in that respect. The overwhelming likelihood is that at least some of the drugs consumed by the young victim in the days or weeks leading up to his death were supplied to him by the offender, who was an experienced drug dealer, and consumed by the victim in the offender's presence. However, I do not think I can be satisfied of the particular finding contended for by the Crown to the requisite degree.
Returning to the events of the evening of 16 May 2015, at about 9pm the victim's father, Azzam, returned home. Realising that the victim had not come home, he spoke to his wife, Maha, the victim's mother, then called the victim. The victim said he was coming home and that he was okay. However, he sounded slower than normal. It seems likely that he had ingested some illicit drug by that time, but it is not possible to be certain whether it was the ecstasy later found in his system or some other drug.
At 9:38pm, the victim was still not home. His mother rang him and told him to come home. He replied, "Mum, it's all right, I'm with my friend, I will come home on my push bike". At 9:41pm, his brother Ahmed rang him and said, "Where are you? Dad's looking for you". The victim said, "I'm coming".
At 9:42pm, his mother rang him again. He was whispering, which she says he never did. She said, "Don't worry about the bike, I am coming to pick you up". The victim said, "Mum, I'm with Aymen, my friend Aymen, come pick me up from Mitchell Street". The victim then asked someone the address and then said, "Bligh Street". The connection then cut out. Bligh Street runs parallel to Belmore Street and borders the rear of the vacant house in which the victim's body was found.
That was the last time anyone from the victim's family heard from him. After that call and throughout the night, family members made many attempts to contact him, without success.
I am satisfied beyond reasonable doubt that, at the time of that last call, the offender and the victim were together in the house at 85 Belmore Street, that the victim was under the influence of some drug or drugs and that the offender killed him in the lounge room of the house.
Any motive for the killing is impossible to discern. The Crown suggested that it might have been prompted by the offender hearing the victim disclose the location of the house to his parents, but that could hardly explain the unspeakable violence that followed.
The offender subjected the victim to the most brutal and horrific attack, inflicting injuries too numerous to list and too gruesome to describe. He took up nearby household items as weapons - a toaster, a rolling pin and the lengthy handle of a squeegee. The use of weapons aggravates the seriousness of the offences. [12] I am satisfied that the offender used the toaster to beat the victim to the face and head. It is clear from forensic evidence that the rolling pin was also used in the attack but it is not clear how. The offender also strangled the victim. The evidence as to the victim's injuries establishes beyond any doubt that the offender made a sustained attack, striking many blows to many parts of the victim's body using extreme force and undoubtedly causing the victim indescribable pain. The more significant injuries were extensive injuries to the head and neck including fractures to the skull and facial bones and traumatic brain damage; injuries to the chest including a fractured rib, a collapsed lung and bruising; anal and internal injuries (described further below) and significant blood loss.
I acknowledge that the murder does not appear to have been premeditated. The use of nearby household items as weapons suggests that it was, rather, a spontaneous attack prompted by an unexpected violent urge. The evidence does not permit any more specific finding as to the explanation for the offence. The extent to which the absence of premeditation mitigates the extreme objective seriousness of the offence is considered below.
It is necessary to give separate consideration to the factual basis on which the offender is to be sentenced for the offence of aggravated sexual assault contrary to s 61J(1) of the Crimes Act. That offence consists in having sexual intercourse with another person without the consent of the other person and in circumstances of aggravation, knowing the other person does not consent to the sexual intercourse. The circumstance of aggravation relied upon by the Crown is that, at the time of the offence, the offender intentionally inflicted actual bodily harm on the victim.
The facts I am about to recite are very disturbing and will reveal that this is a most serious instance of that offence. At some point, probably towards the end of the victim's horrible ordeal, the offender thrust the squeegee handle into the victim's anus and pushed it upwards with such force that it lacerated the rectum and the bowel and perforated the stomach wall. A portion of the plastic coating of the handle remained inside the victim's abdomen to be recovered by the forensic pathologist, Dr Brouwer, during her post mortem examination. Dr Brouwer counted at least four "punched-out defects" in the stomach, which establishes that the pole was thrust in that violent manner repeatedly, stamping the stomach wall with force at least four times.
It is impossible to understand how any person could be motivated to perform such acts. To say that they involved gratuitous cruelty is almost an understatement; that is clearly an aggravating factor in this case. [13] I must accept, as submitted by counsel for the offender, that it is not possible to be satisfied beyond reasonable doubt that those acts were committed for sexual gratification, but that hardly mitigates the seriousness of this horrifying offence. The victim's injuries do suggest some psychosexual motive or gratification of some kind of urge, perhaps violent rather than sexual, perhaps both. However, the evidence does not permit me to make any finding on that issue. The degree of violence suggests an ice-fuelled rage of the kind with which weary police, ambulance officers and other medical professionals are all too familiar. But despite his extensive dealing in the substance, the offender says he "never touched" ice [14] and it is simply not possible to make any finding on that issue.
The jury's verdict holds that the victim was still alive at the time of the sexual assault. Mercifully, he was almost certainly barely conscious by that stage. The forensic evidence and crime scene photographs establish that he made some attempt to move from the site where the sexual assault occurred but succumbed to his injuries very soon afterwards. The multiple injuries inflicted by the offender caused the victim's death.
The offender left the victim lying in a pool of blood, naked from the waist down. I am satisfied that the offender took some of the victim's money, his two phones, his Nike shoes, his pants and his underpants. He threw the victim's iPhone into a nearby drain and disposed of the other items. He also disposed of the clothing he had been wearing that night. A five-dollar note with a spot of blood containing the DNA profile of the victim was later found inside a bum bag in a wardrobe in the offender's bedroom.
It is not necessary to recite subsequent events in any great detail. In short, the victim's distraught family spent the whole night desperately searching for him. Ultimately, shortly before 11am the following morning, they were directed to the vacant house where his body could be seen through a window. It was his brother who saw him. His body was battered beyond recognition.
At about 2pm that day, detectives visited the offender at his home. Detective Olivares noticed a small blemish on the offender's forehead. I accept, as submitted by the Crown, that the offender lied to the police at that stage. He initially denied knowing the victim. He then said he hardly knew him and that the victim had been at his house but had left while the offender was praying. He said he (the offender) had stayed home all night. The offender's father purportedly confirmed that the offender was home all night.
On 19 May 2015, the offender voluntarily made a signed statement to police. His father also made a statement that day. The offender admitted that he had been with the victim earlier on the night he died, at the Abdul-Rahmans' house and at McDonald's, and that the victim had accompanied him home. He lied about his association with the vacant house and further lied by telling police that the victim left the Terkmanis' house by himself while the offender stayed at home for the rest of the night. The offender's father made a statement confirming that the victim had arrived at the house but claiming that the offender had remained at the house for the rest of the evening.
Police arrested the offender at about 3:10pm on 16 July 2015. He has been in custody since that day but for most of that period has been serving sentences imposed for other offences.
[3]
Impact on the victim's family
The impact of the offences on the family of Mahmoud Hrouk has been utterly devastating. His mother and five siblings gave victim impact statements which were read at the proceedings on sentence. In the absence of any application by the prosecutor, those statements are not to be taken into account in connection with the determination of the appropriate sentence, [15] but it is important to acknowledge the Hrouk family's love of Mahmoud and their courage in describing the terrible impact of his death. [16]
Before Mahmoud was killed, the Hrouk family was as happy and close as a family can be, thriving on the richness of family life. They played team sports and backyard cricket and footy at the park. Mahmoud looked out for his siblings. He taught his brothers how to ride bikes and go-karts and how to do tricks on them. He bought them things and fixed things and gave them his spare change. They shared clothes and shoes and food and work tools. Mahmoud dreamed of building a mansion for their mother. He teased his younger sister that he was their mother's favourite child.
These offences have torn away that peaceful happiness. The family is now overwhelmed with sadness, anger and distress. The parents fear for the children and the children fear for their parents. Every single member of the family is suffering dreadfully. They no longer do any of the things they used to do together. One sibling says they are now living a bitter, dysfunctional and torn life that will go on forever. The Court can only express the hope that, with the healing force of time, the level of their despair will lessen and some family strength will be restored.
[4]
Principles to be applied in determining whether a life sentence should be imposed
The Crown submitted that each of the offences is so grave as to warrant the imposition of the maximum prescribed penalty. In the case of the charge of murder, that would require the imposition of a sentence of imprisonment for life. It appears still to be a common misconception (notwithstanding the introduction of the so-called "truth in sentencing" legislation) that an offender serving a life sentence is nonetheless entitled to be released from prison at some point. That is incorrect. In New South Wales, a person sentenced to imprisonment for life for the crime of murder must serve that sentence for the term of the person's natural life, [17] with no prospect of release. There is no authority to fix a non-parole period for a person serving a life sentence for murder. [18]
The Court's sentencing discretion in determining whether to impose the maximum penalty is directed by s 61 of the Crimes (Sentencing Procedure) Act 1999 (NSW), which provides that the Court is to impose a sentence of imprisonment for life if satisfied that the level of culpability in the commission of the offence is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of that sentence. [19]
To find that an offence is so grave that it warrants the imposition of the maximum prescribed penalty, it must be possible to point to particular features of the case which are of very great seriousness and to postulate the absence of facts mitigating the seriousness of the crime. The onus is on the Crown to satisfy that test beyond reasonable doubt.
If the test is met, it remains necessary to consider whether nevertheless to impose a determinate sentence instead. Section s 61(3) expressly preserves the power under s 21(1) of the Act to take that course.
It has been recognised that there is a degree of tension between, on the one hand, reaching the conclusion that the level of culpability is so extreme as to require the imposition of a life sentence and, on the other hand, declining to do so. The resolution of that tension is to be found in the language of the statute itself. Section 61(1) is concerned with the measure of the offender's culpability for the offence, requiring the Court to mark the highest degree of moral responsibility or "blameworthiness" with the maximum punishment. That assessment must be directed to the circumstances of the offence, leaving aside matters such as remorse or prospects of rehabilitation (but not precluding consideration of circumstances of the offender having some causal connection with the offence). [20] In reserving to the Court the discretionary power to reduce the penalty indicated by that assessment, the Act recognises that there may be cases in which the subjective circumstances of the offender displace the need for a life sentence. [21]
To adopt that approach is not to engage in a two-stage approach of the kind disapproved by the High Court in Muldrock, [22] but simply to apply the statute, which requires the Court to consider whether to exercise the power expressly preserved by s 61(3).
The proposition that subjective circumstances have no relevance if the offence falls within the worst category has been expressly rejected by the Court of Criminal Appeal [23] and would be inconsistent with the proper approach to the exercise of the sentencing discretion explained by the High Court in Markarian. [24] For example, one of the purposes of sentencing identified in s 3A of the Act, the promotion of rehabilitation, finds no place in s 61(1). That is not to say that a life sentence cannot be imposed if there is a prospect of rehabilitation. It would be open to the Court, having considered the subjective case, to conclude that a life sentence is nonetheless warranted, but it is not open to the Court to ignore the subjective case or to decline to exercise the discretion under s 21(1).
[5]
Assessment of culpability in the present case
Section 61(1) requires the Court to consider the community interest in retribution, punishment, community protection and deterrence. [25] Each of those is an important consideration in the present case.
The offence of murder committed by the offender was an offence of the most extreme violence. The number, nature and extent of the victim's injuries establish beyond any doubt that he was subjected to a sustained attack of horrific savagery. As submitted by the Crown, the anal and associated internal injuries he suffered were particularly gruesome, establishing the repeated, aggressive thrusting of an object up the anus to the point where it reached and injured the stomach. There can be no doubt that the offender intended to kill Mahmoud Hrouk and that he did so by committing a series of acts of the utmost viciousness and cruelty. In the circumstances, I consider the community interest in retribution and punishment to be very high.
The need for community protection is also a very significant factor in this case, as is the related issue of deterrence. The danger the offender poses to the community is clearly demonstrated by the facts of the offences which, in my view, speak for themselves. As already noted, the offences do not appear to have been premeditated. Premeditation or prior contemplation of killing has certainly been a significant feature in other cases in which life sentences have been imposed. [26] Its absence in the present case mitigates the objective seriousness of the offences to some small extent.
I understood counsel for the offender to submit that, in the absence of any explanation for the offences, the Court would find it more difficult to be satisfied beyond reasonable doubt that they are so grave as to warrant the maximum penalty, since it is difficult to exclude the reasonable possibility of some explanation which might take the offences outside that category. Counsel further submitted that the absence of any explanation for the offence of murder means that it cannot be placed within a number of the categories traditionally acknowledged as warranting the imposition of the maximum penalty, such as contract killings or premeditated sadism. However, as submitted by the Crown, in assessing the need for community protection, a motiveless and inexplicable murder can be as serious as a planned one, at least insofar as it is an indicator of future dangerousness. [27]
The Crown submitted that I should also have regard to the offender's prior convictions in this context. Upon reflection, I think that is a wrong approach. While s 61(1) requires the Court to have regard to the community interest in community protection, the determination the Court is required to make under that section is specifically tied to the measure of the offender's culpability "in the commission of the offence". To have regard to prior convictions in making that determination may infringe the principle of proportionality, which precludes the imposition of a longer sentence than is appropriate to the crime merely to protect society. The offender's prior convictions remain relevant in the manner considered below.
[6]
Subjective case
The offender did not give evidence at the trial or at the proceedings on sentence. His subjective case was presented in a report from a consultant psychologist, Mr Anthony Diment, together with a number of references.
Mr Diment interviewed the offender in October 2017 (which was after the jury verdict) and also administered a number of psychometric tests. He found the offender to be well-oriented in time, date and place and found no evidence of any severe psychopathology. Mr Diment recorded that the offender maintains his innocence and states that he is "shocked and sickened" by what happened to Mahmoud Hrouk. The offender claims to have warned Mahmoud not to go down the path of drugs and expresses the hope that "somehow they will find out who did this".
Mr Diment obtained background information indicating that the offender had a happy and relatively uneventful childhood. He is the youngest of four children. His father is a carpenter and his mother was a nurse and teacher. He has very good memories of his childhood but had some difficulties at school. He left in year 10 and began an apprenticeship in plumbing. He acknowledged that he had been in trouble before and explained that he was in "a bit of the wrong crowd at times". He said he had only had "normal straight" relationships and denied any homosexual activity or homophobia.
The offender told Mr Diment he had never really consumed alcohol but admitted smoking cannabis and using cocaine. He said his use of cocaine eventually reached 3.5 grams a week. He claimed never to have used ice.
Based on his clinical observations and psychometric testing, Mr Diment expressed the opinion that the offender sits above the average range on "clinical anxiety and depression" but considered that to be primarily due to his circumstances of having been charged and subsequently found guilty of offences for which he maintains his innocence and being kept in segregated custody for some two years.
A second psychologist's report was before the Court as part of the Crown material tendered at the proceedings on sentence. That report was prepared by Ann-Marie De Santa Brigida, counselling psychologist, for the purpose of the earlier proceedings on sentence relating to the offender's drug offences. The history recorded by Ms De Santa Brigida was consistent with that recorded by Mr Diment. She also conducted psychometric tests, importantly including an IQ test. The offender's score for that test would place him in the below average range.
Ms De Santa Brigida also raised the question of Attention Deficit/Hyperactivity Disorder (ADHD). The offender was never diagnosed with ADHD in childhood and it is a disorder which, in adulthood, must be diagnosed by a psychiatrist. Ms De Santa Brigida nonetheless identified a number of features of the offender's childhood development consistent with undiagnosed ADHD. She said that ADHD is often persistent from childhood and in many cases continues into adulthood. It has been associated with aggressive behaviour in early childhood. It has also been associated with adult difficulties with addictions and with propensity for criminal activity. Ms De Santa Brigida did notice one factor suggesting that, if the offender had undiagnosed ADHD in childhood, it did not carry through to adulthood. She was referring to the fact that he did not report "the paradoxical effect of cocaine", which is that ADHD sufferers typically report an opposite effect of intoxicating substances.
Probably the most important aspect of Ms De Santa Brigida's report is her reference to the relevance of youth in the assessment of criminal conduct. She noted that the part of the brain which controls "higher cortical functions including the individual's ability to anticipate consequences and control impulses" does not reach full maturation until the age of 25. That is an important factor in this case. Otherwise, the report does not provide a basis for any firm conclusion about the offender such as to explain or mitigate the seriousness of his conduct.
The offender also tendered three references which are considered below.
[7]
Prior convictions
The offender's prior convictions reinforce my conclusion that he poses a danger to the community. In October 2008, when he was aged 15 years, he committed an offence of recklessly causing grievous bodily harm. The offence involved a knife attack on a man the offender suspected of having stolen his bicycle. The offender thrust the knife at the man's arm causing two stab wounds, one of which pierced an artery and required surgery.
In September 2010, when he was aged 17 years, the offender committed an offence of affray. Whilst on bail for that offence, he committed an offence of assault occasioning actual bodily harm. The affray involved an unprovoked attack on a man at a train station on a Monday afternoon. The victim was hit numerous times in the face and body. Unwisely, the victim later pursued the offender, who attacked him again, ultimately bringing him to the ground where he kicked him in the head repeatedly.
The assault was another unprovoked attack at a railway station. The victim appears to have been a stranger to the offender. The offender approached the victim to engage him in conversation and then punched him in the face causing him to drop to the ground. The offender then kicked the victim in the head and struck him to the head with his knee.
Finally, whilst in custody following his arrest for the present offences, the offender committed an offence of assault occasioning actual bodily harm on another prisoner. A prison officer found the offender in his cell sitting on top of the victim "laying a barrage of punches" into him. The evidence also established that the offender kneed the victim in the face and at one point put his hands around the victim's throat.
Having regard to the facts of those prior matters, although there is no expert evidence before the Court specifically addressing this issue, I am satisfied that the offender has a dangerous propensity to unprovoked violence which should be taken into account in fixing any determinate sentence. As explained in Veen (No 2), [28] the principle of proportionality precludes the imposition of a longer sentence than is appropriate to the crime merely to protect society, but the protection of society is a material factor in fixing an appropriate sentence.
However, it is also appropriate to have regard to the fact that separate legislation allows the risk posed by an offender by the time he or she has concluded a lengthy sentence to be assessed and addressed by supervision in the community or the imposition of a further period of detention if that is necessary at that later point in time in order to protect the community. [29]
[8]
Conclusion as to life sentence
I am satisfied that, leaving aside the final discretion whether to impose a determinate sentence, the level of the offender's culpability in the commission of the offence of murder is so extreme in the present case as to warrant the imposition of the maximum penalty.
There is, however, an important subjective consideration which has led me to conclude that I should impose a determinate sentence and that is the offender's youth. The offender was aged 21 years at the time he committed these offences and is now aged 24 years. That is relevant to the exercise of the Court's discretion in a number of ways.
First, to state the obvious, to impose a life sentence on a younger person is to impose a longer sentence on that person. Further, it is to impose a longer sentence on a person who is taken, by reason of youth, to be less culpable. As explained in Ms De Santa Brigida's report, at the time these offences were committed, the offender's ability to anticipate consequences and control impulses had not reached full maturity. Ordinarily the law would regard such a person to be less culpable than an older person of full maturity. But in the case of offences falling in the worst category, the recognition of that consideration is potentially stifled: the younger offender will properly be regarded as being less culpable but will receive a longer sentence than an offender who is cognitively or developmentally more mature.
Finally, a younger person will ordinarily be likely to have at least some prospect of rehabilitation. The offender was born in 1993; he is now aged 24. He might live another 50, 60 or even 70 years. Over that period and consistently with the purposes of sentencing, his term of imprisonment is to be administered so as, among other things, to promote his rehabilitation.
In this context, I have been assisted by the references tendered on behalf of the offender, particularly those from the offender's sister and sister-in-law. They provided a thoughtful insight into aspects of the offender's character not otherwise disclosed in the evidence. Their letters are realistic, respectfully acknowledging the jury's verdict and the terrible suffering the offences have inflicted on the Hrouk family. The sisters nonetheless describe the offender as a person who, in family life at least, is capable of displaying loyalty, kindness and empathy. Plainly enough, their assessment of him is informed by familial love. But the very fact of their support and the powerful terms in which it is expressed provide a basis for acknowledging that the offender should not be regarded as being beyond redemption.
So far as the cases relied upon by the Crown reveal, the only person sentenced to life imprisonment for murder for offences committed at a younger age than the present offender was Valera, [30] who was aged 19 years at the time he committed two separate murders. The facts in that case were extremely gruesome. Further, it is significant to note that Valera was decided at a time when the proper construction of s 61 was unresolved. The offender in that case was sentenced the day after publication of the decision in Harris and before the decisions in Miles and Merritt. The focus of the jurisprudence before that time was on the question of whether the Court has authority to fix a non-parole period when a life sentence is imposed. Studdert J specifically recorded at [124] that, had he "been empowered to provide for the possibility of the prisoner's ultimate release upon parole", he would have done so. His Honour did not address the discretion under s 21(1) to impose a determinate sentence.
Counsel for the offender pointed to additional factors apart from the offender's youth militating against the imposition of a life sentence in the present case. In particular, he referred to the offender's low intellectual function and the fact that, owing to the nature of his offences, he will serve his sentence in segregation, at least for the time being. I accept that those factors are of some relevance albeit limited.
For all of the foregoing reasons, although I am persuaded that the offence of murder in the present case falls within the worst category and satisfies the test in s 61(1), I have decided to exercise my discretion under s 21(1) of the Crimes (Sentencing Procedure) Act to impose a lengthy determinate sentence rather than a sentence of imprisonment for life.
[9]
Conclusion as to aggravated sexual assault
As already noted, the Crown contended that the aggravated sexual assault offence also calls for the imposition of the maximum penalty, which in that case is imprisonment for 20 years.
The task of assessing the seriousness of that offence is complicated by the need to avoid punishing the offender twice for the same conduct. The act of sexual intercourse relied upon by the Crown also stands as one of the acts causing death, but not the only act causing death. In my assessment, considering the offences separately, the nature of the acts of penetration of the anus and the pain and injuries caused by those acts make each offence so grave as to warrant the maximum prescribed penalty. The fact that the most gruesome aspect of each offence is common to both offences does not mean they cannot both simultaneously fall within the worst category. However, in order to avoid double punishment for the same acts, it is necessary to allow a high measure of concurrency between the two sentences.
I propose to impose an aggregate sentence, as allowed under s 53A of the Crimes (Sentencing Procedure) Act. The sentence I would otherwise have imposed for the offence of murder is imprisonment for a period of 40 years with a non-parole period of 30 years. The sentence I would otherwise have imposed for the offence of aggravated sexual assault is imprisonment for a period of 20 years with a non-parole period of 15 years. The aggregate sentence will reflect substantial concurrency to avoid double punishment, but there will be accumulation of 5 years to mark the discrete offending, giving an aggregate sentence of 45 years with a non-parole period of 33 years. The non-parole period is rounded down, but I do not consider there is otherwise any warrant for varying the statutory ratio of the non-parole period to the balance of term.
The Crown submitted that the sentence should commence on a date coinciding with the expiration of a sentence the offender is currently serving. I consider it appropriate instead to fix the offender's sentence to commence from the date of the jury's verdict, which was 21 August 2017.
Aymen Terkmani, you are convicted of the murder of Mahmoud Hrouk. You are further convicted of the offence of aggravated sexual assault against Mahmoud Hrouk. For those offences, I sentence you to an aggregate term of imprisonment with a non-parole period of 33 years commencing on 21 August 2017 and concluding on 20 August 2050 and a balance of term of 12 years concluding on 20 August 2062.
The first date on which you will be eligible for release to parole is 20 August 2050.
Pursuant to s 25C of the Crimes (High Risk Offenders) Act 2006, I request the offender's legal representatives to advise the offender of the existence of that Act and of its application to these offences.
[10]
Endnotes
Crimes Act 1900 (NSW), s 19A(1).
Crimes (Sentencing Procedure Act) 1999 (NSW), s 54B and Table item 1B.
Crimes Act 1900 (NSW), s 61J(1).
Crimes (Sentencing Procedure Act) 1999 (NSW), s 54B and Table item 8.
Outline of Crown submissions on sentence dated 25 October 2017 pars 6-40.
Evidence of Mohammed Abdul-Rahman, T552.20.
Evidence of Khodr Sleiman, T498.29.
Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2)(j).
Evidence of Azzam Hrouk, T160.47.
3,4-Methylenedioxymethylamphetamine.
3,4-Methylenedioxyamphetamine.
Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2)(c).
Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2)(f).
Report of Anthony Diment dated 18 October 2017 at page 5.
Crimes (Sentencing Procedure) Act 1999 (NSW), s 28(4).
Crimes (Sentencing Procedure) Act 1999 (NSW), s 28(3).
Crimes Act 1900 (NSW), s 19A(2).
R v Harris (2000) 50 NSWLR 409; [2000] NSWCCA 469 at [122] per Wood CJ at CL; Giles JA and James J agreeing at [1] and [139].
The test under that section is not dissimilar to the test at common law, which has been formulated as requiring the Court to assess whether the case falls within the "worst case category": Harris at [87]. However, the High Court has suggested it is preferable to avoid that expression, which simply means an instance of the offence which is so grave that it warrants the imposition of the maximum prescribed penalty for that offence: The Queen v Kilic (2016) 259 CLR 256; [2016] HCA 48 at [17]-[20].
Harris at [60].
Harris at [90], [94]; R v Miles [2002] NSWCCA 276 at [201] to [204] per Carruthers AJ; Stein JA and Bergin J agreeing at [52] and [61]; R v Merritt (2004) 59 NSWLR 557; [2004] NSWCCA 19 at [37] per Wood CJ at CL; Tobias JA agreeing at [1] but see [7]; Hidden J agreeing with both at [81]; SW v R [2013] NSWCCA 103 at [135] per McClellan CJ at CL; at [147] per Hall and Davies JJ.
Muldrock v The Queen [2011] HCA 39.
R v Miles [2002] NSWCCA 276 at [201] to [204] per Carruthers AJ; Stein JA and Bergin J agreeing at [52] and [61].
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25.
The decision of the Court of Criminal Appeal in Merritt offers mixed guidance as to the construction of that requirement but, for present purposes, it is not necessary to resolve those differences.
Eg R v Stanford, Vincent [2016] NSWSC 1434; R v Valera [2000] NSWSC 1220.
Cf R v SLD [2002] NSWSC 758 at [17] per Wood CJ at CL.
Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14.
Crimes (High Risk Offenders) Act 2006 (NSW).
R v Valera [2000] NSWSC 1220.
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Decision last updated: 17 November 2017